Palisades Collection, LLC v Diaz

[*1] Palisades Collection, LLC v Diaz 2009 NY Slip Op 52228(U) [25 Misc 3d 1221(A)] Decided on November 4, 2009 Nassau Dist Ct, Second District Ciaffa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2009
Nassau Dist Ct, Second District

Palisades Collection, LLC, A/O USA First, Plaintiff(s)

against

Charles Diaz, Defendant(s)



19557/08



Mann Bracken, LLP 300 Canal View Blvd. Suite 330 Rochester, NY 14623, Attorney for Plaintiff

Riconda & Garnett, LLP 753 West Merrick Road Valley Stream, NY 11580, Attorney for Defendant

Michael A. Ciaffa, J.

Motion by plaintiff under CPLR 306-b to extend its time to properly serve defendant is DENIED, and its action is DISMISSED pursuant to CPLR 3215(c).

On June 20, 2008, plaintiff filed proof of alleged service upon defendant, Diaz, notarized by William Singler of American Legal Process, claiming that defendant was served with the summons and complaint pursuant to CPLR 308(2). Two weeks later, on July 3, 2008, a duplicate copy of the summons and complaint were allegedly mailed to defendant in accordance with CPLR 3215(g)(3).

As of July 31, 2008, plaintiff could have applied for a judgment by default. It did not do so.

Plaintiff's counsel claims on this application that it was first "made aware" of allegations of "improper attesting to affidavits of service" when Mr. Singler was arrested on April 14, 2009. Prior to that date, plaintiff's counsel claims it was "unaware of the extent of the allegations against. . . American Legal Process." Nevertheless, counsel asserts that she "had no personal knowledge that service was not completed as indicated in the affidavit of service filed with the court." Moreover, notwithstanding Mr. Singler's well-publicized legal problems, counsel continues to rely upon the "rebuttable presumption" that defendant received actual notice of the action through the §3215(g)(3) mailing.

For the reasons expressed at length in LVNV Funding Corp. v. Delgado, 2009 NY Slip Op 51677(U), this Court is unwilling to grant extensions of time to properly serve a defendant, in circumstances like those presented, absent proof of a meritorious claim. No such merit is shown by plaintiff's moving papers. See LVNV Funding Corp.,supra. [*2]

PAGE 2

INDEX No.19557/08

PALISADES V. DIAZ

However, the instant application suffers from a more serious defect. The issue, simply stated, is this: can a plaintiff circumvent the one-year limitation for taking proceedings for the entry of judgment after a default (CPLR 3215[c]) by applying for permission to make late service under CPLR 306-b? I think not.

More than a year and four months ago, plaintiff's counsel filed an affidavit of service, regular on its face, claiming proper service upon defendant. It failed to either take proceedings for the entry of judgment within one year of defendant's apparent default, or to promptly disavow the claimed service upon learning of Mr. Singler's arrest.

In accordance with the Court's authority to act "upon its own initiative" in such circumstances, the Court concludes that dismissal of the complaint, as abandoned, is the appropriate remedy. CPLR 3215(c).

SO ORDERED:

DISTRICT COURT JUDGE

Dated: November 4, 2009