Limberger v Rabadi

[*1] Limberger v Rabadi 2005 NY Slip Op 51384(U) [9 Misc 3d 1103(A)] Decided on August 24, 2005 Civil Court, Bronx County González, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2005
Civil Court, Bronx County

Anna Limberger, Plaintiff,

against

Amen M. Rabadi, Defendant.



45429/01

Lizbeth González, J.

Plaintiff Anna Limberger moves for an order directing entry of judgment for the plaintiff in the amount of $20,000 with interest from July 3, 2001, the date of the filing of the summons and complaint herein. Defendant Amen Rabadi cross-moves for an order pursuant to CPLR 3215 (c) dismissing the action for failure to take proceedings for the entry of judgment within one year after his default.

In an affidavit of merit attached to the moving papers, the plaintiff states the defendant was served with the summons and endorsed complaint on June 27, 2001. Ms. Limberger brought the underlying action to recover $20,000 personally loaned to the defendant. After filing the summons and complaint on July 3, 2001, the plaintiff's attorney wrote to the defendant on July 11, 2001 and offered to settle the matter for the reduced amount of $15,000 payable in $200.00 increments in the following manner: (I)n light of what you have told me today regarding your financial responsibilities, my client will settle this matter for $15,00.00.You agree to pay me as attorney at my address above the sum of $200.00 per month beginning on 7/15/01 and continuing each successive month. In six (6) months, you will let me know what [*2]efforts you have made to pay this matter in full, and keep me apprised at all times. You will then get a credit for the monies that I have accumulated in my escrow account.In light of this settlement, this matter will not be brought to Court for judgment and no default will enter, unless you fail to make timely payments to me.If you agree to the foregoing, please execute above and send a copy of this letter back to me.

Mr. Rabadi accepted the conditional offer by signing the letter in the lower left-hand corner. Payment in the amount of $2,750 is acknowledged including payments deposited into the attorney's escrow account as follows: $200 (7/21/01); $200 (8/17/01); $200 (9/21/01); $170 (10/20/01); $200 (11/27/01); $200 (12/21/01); $200 (1/28/02); $200 (3/02/02), $400 (4/07/02) and $600 (7/09/02). Payments ended after July 2002. The plaintiff states in her affidavit that she thereafter demanded payment of the $15,000 by telephone and in writing. In September 2002, the defendant agreed to sign a confession of judgment. A letter from plaintiff's counsel dated September 5, 2002 states in pertinent part: As per our telephone discussion enclosed please find a confession of judgment and a Stipulation of settlement of the above referenced action. If all is in order please sign where indicated and have your signature notarized, and return the documents to me at your earliest convenience.

The defendant did not sign or return the confession of judgment. The plaintiff now seeks a judgment in the original amount of $20,000 minus payments of $2,750 which equals $17,250 plus interest, costs and disbursements.

The defendant's cross-motion, supported only by an attorney's affirmation, seeks dismissal of the action pursuant to CPLR 3215 (c) on the ground that the plaintiff failed to initiate proceedings for a default judgment within one year of the default. Counsel, who contends that any attempt to excuse the plaintiff's delay is misplaced, calculates that four and one half years have lapsed from the date of the alleged service to the date of the filing of the underlying application for a default judgment.

DISCUSSION

CPLR 320 (a) provides that a defendant in a civil action is required to appear by serving an answer or a notice of appearance, or moving to extend its time to answer, within 20 days after personal service of the summons or within 30 days after service is complete pursuant to CPLR 303, [*3]308 (2-5), 313, 314 or 315. When a defendant fails to appear in an action, the plaintiff may seek a default judgment pursuant to CPLR 3215 within one year after the default. The one year period runs one year from the date of the default, instead of one year after the the summons and complaint were filed. (PM-OK Associates v Britz, 256 AD2d 151 [1st Dept 1998].) In the event that the plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, CPLR 320 (a) provides that "the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." To avoid dismissal of the action, the plaintiff must explain the delay and establish a meritorious claim. (Truong v All Pro Air Delivery, 278 AD2d 45 [1st Dept 2000].)

In LaValle v Astoria Construction & Paving Corp, the First Department weighed the merits of the claim and the lack of prejudice to the defendant in holding that dismissal of the complaint would not lie where a plaintiff delayed more than one year in moving for a default judgment due to inadvertent error by counsel. (LaValle v Astoria Construction & Paving Corp, 266 AD2d 28 [1st Dept 1999].) The First Department made a similar determination in Corbin v Wood Pro Installers Inc. (184 AD2d 234 [1st Dept 1992]) finding no prejudice attributable to the delay where Despite plaintiff's revocation of the "open" stipulation allowing defendants an indefinite extension of time to answer, plaintiff's attorney's contact with defendant's insurer, while not the equivalent of on-going negotiations, was such as to indicate that plaintiff did not intend to abandon the action.

Forbearance by a plaintiff to allow a defendant's insurance carrier to investigate and defend an automobile negligence action, accompanied by an uncontested affidavit of merit, was deemed sufficient to excuse a delay in seeking a default judgment within the statutory period. (Pappoe v Custodio, 156 AD2d 211 [1st Dept 1989].) A three year delay was excused where confusion over whether the defendants were insured by one or two companies existed and settlement negotiations continued past the one year statutory period. (Schiff v Motor Vehicle Acc. Indemnification Corp, 155 AD2d 326 [1st Dept 1989].) Sufficient cause was established where a two year delay was occasioned by the plaintiff's investigation to determine whether the defendant was insured by one or two companies. (Vaiselberg v Duarte, 8 Misc 3d 1014[A], 2005 WL 1662035 [Sup Ct, Kings County, Francois Rivera, J. 2005].) Ongoing motion practice, depositions or other proceedings can also establish sufficient cause. (Hoppenfeld v Hoppenfeld, 220 AD2d 302 [1st Dept 1995].)

While it is true that CPLR 3215(c) prevents an inactive plaintiff from taking advantage of a defendant's default, a defendant's conduct can waive its right to seek dismissal of the complaint. (Myers v Slutsky, 139 AD2d 709 [2d Dept 1988]; see Spencer v City of New York, NYLJ, April 5, 2001, at 22, col 3 [Civ Court, Bronx County, Manzanet, J.) Dismissal has been denied, for example, where the plaintiff's delay in entering a default judgment was caused by the defendant's repeated failure to comply with discovery demands and orders. (Gilmore v Gilmore, 286 AD2d 416 [2nd Dept 2001].) In the case at bar, the defendant has unclean hands and suffered no prejudice by virtue [*4]of the plaintiff's delay in seeking entry of a default judgment. The plaintiff relied to her detriment on the defendant's written promise to the extent that she agreed to discount $5000 of her $20,000 claim, forego judgment and accept installment payments. The July 11, 2001 settlement between the parties conditionally promised that the $20,000 claim would be discounted and no judgment would enter so long as the defendant made timely payments and apprised plaintiff's counsel whether his financial status had improved sufficiently within six months so as to repay the remaining balance in full. The defendant repudiated the agreement by failing to make payment after July 2002 and refusing to sign and return the proposed confession of judgment.

In support of his cross-motion to dismiss the complaint, the defendant proffers only the affirmation of his attorney. It is well settled that, although the affirmation of an attorney may serve as a vehicle for the submission of acceptable attachments that offer evidentiary proof, an affirmation of an attorney without personal knowledge of the facts lacks probative value. (Zuckerman v City of New York, 49 NY2d 557 [1980].) Here, the defendant submits no affidavit or documentation in support of his cross motion to explain his conduct or show prejudice caused by the delay. He makes no request to file a late answer.

The plaintiff's motion for an order directing entry of judgment for the plaintiff in the amount of $17,500 with interest from July 9, 2002, the last date of payment, is granted. The defendant's cross-motion is denied. A copy of this order shall be served with notice of entry upon the defendant and the clerk of the court within 10 days.

This constitutes the decision and order of the Court.

Dated:August 24, 2005

So ordered,

_________________________________

Hon. Lizbeth González, JCC