Andishieh Avini and Nina Seirafi, Plaintiffs, v. New York Art Foundry, Inc. and Paige Tooker, Defendants. (2023)

In this breach-of-contract action, plaintiffs, Andishieh Avini and Nina Seirafi, move without opposition for default judgment under CPLR 3215 against defendants, New York Art Foundry and Paige Tooker. The motion is denied. Plaintiff Avini's claims against defendants are dismissed as abandoned under CPLR 3215 (c). Plaintiff Seirafi's claims against defendants are dismissed for failure to obtain leave of court before adding Seirafi as a party plaintiff.

Plaintiff Avini brought this action in April 2019. (NYSCEF No. 1.) Plaintiff served defendants in August 2019. (NYSCEF Nos. 2, 3 [affidavits of service].) Defendants did not appear. In March 2023, three-and-a-half years after defendants' default, Avini filed an amended complaint. (NYSCEF No. 5.) This amended complaint added Seirafi as a plaintiff, asserting claims in addition to those brought by Avini. Avini did not first seek or obtain leave of court to amend the complaint under CPLR 3025, nor leave of court to add Seirafi as a plaintiff under CPLR 1003.

Plaintiffs now move for default judgment on the amended complaint. (NYSCEF No. 6.) But Avini's claims became subject to dismissal no later than mid-2021 (taking into account any COVID-19-related tolling), due to Avini's failure to seek default judgment against defendants within one year of their default, as CPLR 3215 (c) requires. Because the amended complaint was filed well after that one-year period expired, the amendment did not reset the CPLR 3215 (c) clock. (See Hummingbird Assoc. v Dix Auto Serv., 273 AD2d 58, 58 [1st Dept 2000].) Although a plaintiff in this situation may avoid dismissal by giving the court "sufficient cause . . . why the complaint should not be dismissed" (CPLR 3215 [c]), Avini does not attempt to do so here.

Seirafi's claims are subject to dismissal because she did not obtain leave of court to assert them in this action. A party may amend a pleading as of right "within twenty days after its service," or "at any time before the period for responding to it expires," or "within twenty days after service of a pleading responding to it." (CPLR 3025 [a].) Outside these periods, amendment is permissible only by leave of court or by stipulation of all parties. More fundamentally, outside these periods, a party plaintiff may not be added to an existing action without leave of court or a stipulation of the parties. (CPLR 1003.) Neither was obtained here. As a result, the amended complaint was "a legal nullity." (Hulse v Wirth, 175 AD3d 1276, 1279 [2d Dept 2019].)

Accordingly, it is

ORDERED that plaintiffs' default-judgment motion is denied; and it is further

ORDERED that plaintiff Avini's claims against defendants are dismissed under CPLR 3215 (c); and it is further

ORDERED that plaintif Seirafi's claims against defendants are dismissed under CPLR 1003 and CPLR 3025; and it is further

ORDERED that plaintiffs serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.

7/27/2023

Gerald Lebovits, J.