2143 ACP LLC v. L. Morris, Defendant(s). (2026)

I. Recitation, as required by CPLR § 2219(a), of the papers considered in review of this Motion:

The following papers read herein:

Numbered

Notice of Motion, Affirmations and Exhibits 1

II. Background

On October 16, 2024, Plaintiff commenced the instant action against Defendant by filing a summons and complaint seeking monetary damages in the amount of $15,692.99 together with interest, costs and disbursement for alleged use and occupancy of the premises known as APT 1J located at 165 West 127th Street, New York, NY 10027 (hereinafter, "Premises"). Defendant failed to appear in this action or interpose an answer.

On March 2, 2026, Plaintiff moved pursuant to CPLR 3215 by motion seeking a default judgment against Defendant in the amount of $13,395.00 together with interest, costs and disbursements ("Motion Seq. #1"). Plaintiff alleged that while a money judgment was entered against Defendant for $54,450.00 in the housing court proceeding bearing Index No. LT-305777-21/NY, representing all arrears due through and including June 30, 2023, Defendant failed to remit payments in the amount of $13,395.00 for her continued use and occupancy (hereinafter, "U&O") of the Premises for the months of July 2023 through November 2023. Motion Seq. #1 was submitted on default on May 11, 2026 and subsequently assigned to this Court for determination on June 15, 2026.

III. Discussion

i. Extension of time to move for a default judgment

Pursuant to CPLR 3215, a plaintiff may seek a default judgment against a defendant who fails to appear or answer (see CPLR 3215[a]). "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (see CPLR 3215[c]). "Sufficient cause requires a showing of an excuse for a plaintiff's delay in seeking default and a meritorious claim" (see Citimortgage, Inc. v Sahai, 172 AD3d 552, 552 [1st Dept 2019] [internal citation omitted]). "The language of CPLR 3215(c) is not discretionary" (see Wells Fargo Bank, N.A. v Martinez, 181 AD3d 470, 471 [1st Dept 2020] [internal citations omitted]). CPLR 2004 allows a court to "extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown."

Under CPLR 308(2), service is deemed complete ten (10) days after filing of the proof of service. The defendant subsequently has thirty (30) days after service is completed in which to serve an answer (see CPLR 320[a]).

Here, Defendant was served with a copy of the summons and complaint at 1455 Townsend Avenue, APT 4E, Bronx NY 10452 (hereinafter, "Townsend") via substituted service pursuant to CPLR 308(2) on November 16, 2024 (see Exhibit 10). Plaintiff searched the New York Department of Motor Vehicles (hereinafter, "DMV") database on August 21, 2024, confirming the Townsend address as Defendant's last known address (see affirmation of P. Oliveri, Esq., ¶ 15; Exhibit 8). A copy of the pleadings was also mailed to the Townsend address on November 19, 2024 (see Exhibit 10). The affidavit of service was filed with the court on November 29, 2024 (id.). As such, Defendant's time to answer or appear in this action expired on or about January 8, 2025. Thus, Plaintiff was required to take proceeding for entry of a default judgment against Defendant within one (1) year of their default in appearance or by January 8, 2026.

The instant motion for default judgment was filed on March 2, 2026, approximately two (2) month beyond the requisite one-year period set forth in CPLR 3215(c). Plaintiff's counsel contended that the late filing of the request for a default judgment was the result of law office failure due to a clerical error made by a former employee of the law office, which caused a delay in Plaintiff requesting for an application for default within the requisite one (1) year period (see affirmation of Peter J. Oliveri, Esq, ¶¶ 26-32). Plaintiff further contended that it has a meritorious claim based on Defendant's failure to remit U&O (id., ¶ 33).

Based on the submissions, the Court finds that Plaintiff demonstrated a reasonable excuse for its delay based on law office failure (see CPLR 2005 ["[T]he court shall not, as a matter of law, be precluded from exercising its discretion in the interest of justice to excuse delay or default resulting from law office failure"]; see also Heijung Park v Nam Yong Kim, 205 AD3d 429, 429 [1st Dept 2022] [internal citation omitted]) and a potentially meritorious claim, which was supported by documentary evidence such as the lease agreement and rent ledger.

ii. Motion for default judgment

A plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215[f]; Bigio v. Gooding, 213 AD3d 480 [1st Dept 2023]). To demonstrate "facts constituting the claim," the movant need only proffer proof sufficient "to enable a court to determine that a viable cause of action exists" (see Bigio at 481 [internal quotation marks and citation omitted]). "The quantum of proof necessary to support an application for a default judgment is not exacting; however, some firsthand confirmation of the facts forming the basis for the claim must be proffered" (see Guzetti v City of New York, 32 AD3d 234, 235 [1st Dept 2006] [internal citation omitted]).

In support of its motion, Plaintiff submitted the following: affirmation of P. Oliveri, Esq.; affirmation of facts by C. Milio (hereinafter, "Milio"); deed; lease agreement; tenant ledger; money judgment and related stipulation of settlement; Marshal's Legal Possession; move-out inspection report; partially redacted DMV record for Defendant dated August 21, 2024; summons and complaint; affidavit of service; affirmation of mailing of additional notice of suit; affirmation of investigator; and Department of Defense Manpower Data Center Status Report.

Here, Plaintiff established a presumption of service based upon the process server's affidavit of service, which stated that Defendant was served at the Townsend address via substituted service on November 16, 2024 (see Exhibit 10). Pursuant to CPLR 3215(g)(3)(i), an additional copy of the summons and complaint was mailed to the Townsend address on December 17, 2024 (see Exhibit 11). Moreover, Defendant was confirmed not to be on active duty in any branch of the United States Military (see affirmation of investigator; see also Department of Defense Manpower Data Center Status Report).

In the case at bar, Defendant failed to interpose an answer, to appear nor submit any papers in opposition to the instant motion. "[H]aving defaulted, [Defendant] is deemed to have admitted all traversable allegations in the complaint, including the basic allegations of liability" (see Hermitage Ins. Co. v Athena Mgt. Corp., 115 AD3d 628, 629 [1st Dept 2014] [internal quotation marks and citation omitted]).

Plaintiff also presented an affirmation of facts by Milio, the authorized agent of Plaintiff, who is an individual with personal knowledge of the facts and circumstances of this matter. Accompanied by a tenant ledger, the affirmation of Milio established that Defendant was obligated to remit payment in the sum of $13,395.00, which represents monthly U&O in the amount of $2,850.00 for the months of July 2023 through October 2023, and U&O in the amount of $1,995.00 for the month of November 2023 (see affirmation of Milio, ¶ 18; see also Exhibit 4). Plaintiff further alleged that the security deposit in the amount of $2,850.00 was applied to the damages caused by Defendant to the Premises (id., ¶ 19). As such, the Court finds that Plaintiff has demonstrated the facts constituting the claim, and accordingly, Plaintiff's motion for default judgment is granted.

IV. Order

Accordingly, it is hereby:

ORDERED that Plaintiff's Motion for default judgement is GRANTED; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $13,395.00 together with interest, costs and disbursements

; and it is further

ORDERED that Plaintiff shall serve a copy of this decision and order upon Defendant with notice of entry within thirty (30) days thereof.

This constitutes the DECISION and ORDER of the Court.

DATE September 1, 2026

HON. WENDY CHANGYONG LI, J.C.C.

Wendy Changyong Li, J.