American Express National Bank, Plaintiff, v. JAMIE JOHNSON (2023)

In this action on a loan, plaintiff, American Express National Bank, moves without opposition for default judgment under CPLR 3215 against defendants, Deltaware Data Solutions Inc. and Jamie Johnson. The motion is denied as untimely under CPLR 3215 (c), and the action is dismissed.¹

CPLR 3215 (c) provides that if a 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 . . . unless sufficient cause is shown why the complaint should not be dismissed." Here, plaintiff served defendants under CPLR 308 (2), 311, and 313 in June 2021. (See NYSCEF Nos. 2, 3 [affidavits of service].) Defendants' time to appear and respond expired in July 2021. But plaintiff did not move for default judgment until December 2022, well over one year later. (NYSCEF No. 5.)

Plaintiff contends, though, that it took proceedings for the entry of judgment in September 2021, within the one-year period, by mailing to defendant Johnson the additional copy of the summons and complaint required by CPLR 3215 (g) (3). (NYSCEF No. 8 at 2 n 2; see also NYSCEF No. 11 [affidavit of mailing and photographs of metered envelopes].) This court finds this argument unpersuasive. To "take proceedings" is most naturally read as initiating a court's process under which a plaintiff may obtain a judgment. In some substantive contexts, that process is somewhat longer and less direct. For example, in the mortgage-foreclosure context, the Appellate Division, Second Department, has held that a lender's motion for an order of reference, or for that matter a request to hold a foreclosure-settlement conference as mandated by CPLR 3408, qualifies as taking proceedings. (See Citimortgage, Inc. v Zaibak, 188 AD3d 982, 983 [2d Dept 2020] [request for settlement conference]; Banc of America Mtge. Capital Corp. v Hasan, 138 AD3d 903, 904 [2d Dept 2016] [motion for order of reference].) But the basic common element remains of the plaintiff's asking a court to take some action, or grant some relief, so that it may ultimately obtain a judgment against the defendant.

Sending a defendant an additional copy of the pleadings, on the other hand, initiates nothing, and it asks nothing of the court. As this action itself reflects, a plaintiff may send the additional mailing without providing the court with contemporaneous notice or proof of mailing. (See NYSCEF No. 11 at 1 [affidavit prepared on September 30, 2022, attesting to mailing made on September 13, 2021].) This additional mailing, although necessary to obtain default judgment, is not made in aid of the default-judgment request—indeed, the mailing can be made simultaneously with the initial service of the summons, prior to any default. (See CPLR 3215 (g) (3) (ii), (g) (4) (ii).) The mailing is instead intended to maximize the likelihood that a defendant will get notice of the action pending against them so that they can timely appear (or at least timely move to vacate their default).

Plaintiff provides no authority for the proposition that the CPLR 3215 (g) additional mailing nonetheless satisfies CPLR 3215 (c)'s one-year deadline. Nor has this court's research uncovered any. At most, in Nunez v 615 W. 176th Street, LLC (2014 WL 7007539, at *1 [Sup Ct, Bronx County Nov. 17, 2014]), the motion court took the CPLR 3215 (g) mailing into account in concluding that an attorney's conceded failure to properly calendar the default-motion deadline constituted excusable law-office failure for purposes of avoiding dismissal under CPLR 3215 (c). The court in Nunez did not, however, hold that the additional mailing was itself sufficient to render timely a later default-judgment motion. (Cf. Silva v Burchetta, 2013 WL 5601991, at *2 [Sup Ct, Westchester County Apr. 15, 2013] [dismissing an action under CPLR 3215 [c] when plaintiff satisfied the additional-notice requirement but did not move for a default judgment within a year of defendant's default].)

As it has in other actions, plaintiff also points to asserted "continual good-faith efforts to settle this matter, (including over 100 phone calls made to Defendants since the complaint was filed)," to excuse its delay. (NYSCEF No. 8 at 2 n 2.) But absent a suggestion that "any of those telephone calls was answered or returned," this court is unpersuaded that plaintiff's "making a series of debt-collection calls . . . may, standing alone, constitute 'sufficient cause' to ward off a CPLR 3215 (c) dismissal." (American Express Natl. Bank v Hybrid, Inc. 76 Misc 3d 637, 639 [Sup Ct, NY County 2022].)

Accordingly, it is

ORDERED that plaintiff's motion under CPLR 3215 for default judgment is denied, and the action is dismissed; and it is further

ORDERED that plaintiff serve copies 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.

DATE 2/28/2023

FOOTNOTES

1.   Plaintiff, acknowledging that its initial (proper) service of the pleadings was untimely, requests under CPLR 306-b a retroactive extension of its time to effect service. (NYSCEF No. 8 at 4-6.) Given this court's disposition of the motion, the court does not reach this issue.

Gerald Lebovits, J.