Consumer Portfolio Servs., Inc. v Walker

[*1] Consumer Portfolio Servs., Inc. v Walker 2009 NY Slip Op 50801(U) [23 Misc 3d 1117(A)] Decided on April 28, 2009 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2009
Supreme Court, Westchester County

Consumer Portfolio Services, Inc., dba the Finance Company, Plaintiff,

against

Keith A. Walker, Sr., Defendants.



22479/2007



Cember and Cember, P.C.

for the plaintiff

10 South Broadway- P.O. Box 555

Nyack, New York 10960

Keith A. Walker, Sr.

pro se

William J. Giacomo, J.

Upon the foregoing papers it is ordered that this motion is denied and the complaint is dismissed.

On October 29, 2007 plaintiff filed its summons with notice with the Westchester County Clerk, thereby commencing this action to recover approximately $22,000 allegedly owed to it by defendant on a revolving line of credit. Defendant was served with the summons with notice on November 3, 2007 pursuant to CPLR 308(4).

Plaintiff's counsel alleges to have received a letter from defendant dated December 20, 2007 disputing the debt. On January 24, 2008, plaintiff's counsel responded to defendant's letter verifying the debt. Despite having no response to its January 24, 2008 letter and despite defendant's failure to demand a copy of the complaint or in any other way respond to the summons with notice, plaintiff waited until March 27, 2008 [FN1] to send defendant yet another letter, this time enclosing a copy of a complaint verified December 19, 2007. Plaintiff does not allege, much less prove that [*2]an extension of time to answer was granted. Plaintiff does not allege any other action until the instant motion which was filed March 25, 2009.

Although plaintiff has demonstrated that its claims against defendant are meritorious and that defendant has defaulted in answering the complaint [FN2], the motion must be denied and the complaint must be dismissed.

To the extent relevant to this motion, CPLR 3215(c) provides that:

"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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." (Emphasis added).

Pursuant to CPLR 3215(c), a Motion Court "providently exercise[s] its discretion in dismissing the complaint" if "[t]he plaintiff fail[s] to seek entry of a default judgment within one year following the defendant's default in answering the complaint" and "the plaintiff fail[s] to make a showing of sufficient cause why the complaint should not be dismissed" (Ewart v. Maimonidies Medical Center, 239 AD2d 543,544 [2d Dept. 1997]).

In this case, plaintiff claims both that defendant never answered the summons nor appeared (see affirmation at ¶¶12-13) and in the alternative that it treated the defendant's December 20, 2007 letter as a notice of appearance and demand for complaint (see affirmation at ¶8).

To the extent plaintiff argues that defendant never answered, then defendant was in default by no later than December 13, 2007. See, CPLR 3012(c). Thus this application made fifteen (15) months after the default is untimely and plaintiff was required to explain its failure to move for a default judgment within the statutory one-year period. Here, plaintiff has failed to address the reason for its untimely application for a default judgment. Accordingly, the motion is denied and the complaint is dismissed. See, Ewart v. Maimonidies Medical Center, supra; Fallsburgh Lumber Company Inc. v. De Graw, 239 AD2d 846,846-847 [3d Dept. 1997] [Affirming dismissal of complaint where default judgment was not sought for thirteen months following default in answering complaint]).

To the extent plaintiff argues that defendant's December 20, 2007 letter was a notice of appearance, plaintiff was obligated to serve the complaint within "twenty days after service of the demand" and that the time to serve an answer to the complaint is extended "until twenty days after service of the complaint". Based on this scenario, the defendant was again in default no later than February 3, 2008. This time line again would render the instant application untimely. Finally, to the extent plaintiff alleges that it either failed to serve the complaint on defendant in response to his December 20, 2007 "notice appearance" until it was enclosed in plaintiff's March 27, 2008, denial of the default motion and dismissal of the complaint is still appropriate. See, CPLR 3012(b). [*3]

On account of the foregoing, plaintiffs motion for a default judgment is DENIED and this action is DISMISSED.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

April 28, 2009

Hon. William J. Giacomo, J.S.C.

cc:Cember and Cember, PC

10 South Broadway- P.O. Box 555

Nyack, New York 10960 Footnotes

Footnote 1:Which is mis-identified in counsel's affirmation as being dated March 27, 2009.

Footnote 2:Though it is unclear whether or not defendant was properly served and further no non-military affidavit is submitted.