TD BANK v. INSURANCE SERVICES INC (2025)

The following paper numbered 1 was read on this motion:

Paper Number

Notice of Motion, Affirmations and Exhibits 1

Plaintiff brings its motion seeking (1) a default judgment against defendants, or in the alternative, an “order that proceedings for the entry of a judgment or the making of an assessment, the taking of an account or proof, or the direction of a reference be conducted at the time of or following the trial or other disposition of the action against the Defendants who have not answered pursuant to C.P.L.R. § 3215;” (2) a judgment against defendant D.M. Insurance Services, Inc. (“DM Insurance”): (a) for DM Insurance to make collateral available to plaintiff for sale or other disposition pursuant to the Uniform Commercial Code; (b) authorizing plaintiff to sell, liquidate, dispose of or retain collateral in a commercially reasonable manner, with the proceeds from the same being applied first to the costs of such sale or other disposition and then in reduction of the amounts due from DM Insurance;(c) restraining DM Insurance from any use of collateral; (d) requiring DM Insurance to hold all collateral and all proceeds from collateral in trust for plaintiff; (e) issuing a Writ of Replevin directed to the Sheriff or other lawfully authorized officers of Westchester County where collateral may be found and directing that such Sheriff or other officers take immediate possession of collateral and deliver same to plaintiff, “the court-appointed receiver or other court-appointed agent, as this Court may direct;” and (3) such costs of suit and other relief as the Court deems appropriate.

In July 2022, plaintiff made DM Insurance a $35,000 loan. Defendant Darwin Martinez guaranteed the loan. DM Insurance also gave plaintiff a blanket security interest in all of its assets, which it called the “Collateral.” The Collateral is literally every item that DM Insurance owns. Although DM Insurance made payments on the loan for more than a year, it defaulted in October 2023. Thereafter, plaintiff sent defendants default letters. Defendants ignored these demands, and plaintiff filed this action, seeking, as of January 31, 2025, the total amount of $42,634.56 ($34,992.79 in principal, $7,151.67 in accrued interest, late fees of $340.10 and inspection fees of $150.00.). Plaintiff also seeks legal fees of $3,389.78.

Despite proper service of the summons and complaint and this motion, defendants failed to file an answer or any opposition.

As there is no reason to deny the motion, it is granted solely to the extent of granting plaintiff a money judgment.¹ In future, counsel shall submit a proposed Order with similarly unopposed motions. Plaintiff shall send a copy of this Decision and Order to defendants by overnight mail within two business days of receipt.

Plaintiff may submit a proposed Judgment to the Judgment Clerk, on notice by overnight mail to defendants, in the amount of $45,000 (which includes counsel fees), plus interest at the statutory rate from the date of entry of this Decision and Order.

The foregoing constitutes the decision and order of the Court.

FOOTNOTES

1.   The Court denies the other relief sought at this juncture, but grants plaintiff the right to seek that relief should judgment enforcement efforts prove fruitless.

Linda S. Jamieson, J.