Merchant Cash & Capital, LLC v Shellfish Grille, Inc.

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Merchant Cash & Capital, LLC v Shellfish Grille, Inc. 2012 NY Slip Op 32362(U) September 10, 2012 Supreme Court, New York County Docket Number: 601226/2010 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] NNED ON 911212012 1 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JOAN M.KENNEY ds. .c PRESENT: Justlce Index Number : 601226/2010 MERCHANT CASH AND CAPITAL, LLC INDEX NO. vs. SHELLFISH GRILLE INC SEQUENCE NUMBER : 002 - 8 PART b/m MOTION DATE MOTION SEQ.NO. DEFAULT JUDGMENT The followlng paperr, numbered Ito NO~JCO MotionlOrdsr to Show CUBS Of Anmwerlng Amdavit8 7 ,were read on thlr motlon toHor -Amdavlb - Exhlblk - Exhlbltm Iw4. IN O W . ROplylnQA m d r v b # / Upon the foregolng papem, It Is ordsrsd that thlt motlon I s MOTION I$ DECIDED IN ACCORDANCE -\ ' W W THE ATTACHED MEMORANDUMD ¬CIS!OU T "" 4 ,J.S.C. I 1. CHECK ONE: \ ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS; ................................................ 0QRANTED 0DENIED 0SEllLE ORDER DO NOT POST . . -. . . - - ..... ..... J.S.C. NON-FINAL DISPOSITION GRANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER REFERENCE [* 2] I Merchant Cash and Capital, LLC, Plaintiff, DECISION AND ORDER Index Number: 601226/10 Motion Seq. No.: 002 -against- KENNEY, JOAN M., J. r.p li! 211iL Recitation, as required by CPLR 22 19(a), of the papek considered in review of this motion for deft&. --OWE , h m W R K , Numbered Papers 1-7 i Notice of Motion, Affirmation, and Exhibits In this action, plaintiff Merchant Cash and Capital, LLC, seeks an order, pursuant to CPLR 32 15, for default judgment against defendant, Richard Greenman. Factual Back- Plaintiff, Merchant Cash and Capital, LLC, is a Delaware Limited Liability Company with its principal place of business in New York City. Defendant Shellfish Grille & Lounge (Shellfish) is a business created and located in Augustine, FL. The Defendant, Richard Greenman (Greenman), resides in Augustine, FL, and was the president of Defendant Corporation. Around December 2009, plaintiff entered into an Agreement w t defendants to loan ih them $50,000.00 with 17% purchased percentage amounting to a total of $69,000.00 (the Although the Notice of Motion papers state that the matter is severed and continued as to defendant, Shellfish Grille, Inc. T/A Shellfish Grille & Lounge due to the business being sold, the attorney affirmation in support seeks judgment against all named defendants. It is also not clear from the above quoted statements whether plaintiff seeks discontinuance of this matter against Shellfish. [* 3] agreement). The agreement stated that the plaintiff would agree to receive a percentage of defendants future credit card, debit card, bank andor other charge card receivable accounts until plaintiff received repayment of the $69.000.00. On January 27,201 0, defendants defaulted on the agreement and failed to pay the amounts due. Defendants allegedly refuse to pay the remaining balance of $58,422.53 plus any statutory interest accruing since January 27,20 10. On January 04,20 11, plaintiff filed for default judgment but w s denied, without a prejudice, because it did not present an affidavit of nonmilitary service with respect to the individually named defendant. More than a year later, on May 18,2012, plaintiff seeks the exact same relief sought before: a default judgment. Arguments Plaintiff claims to be entitled to a default judgment because defendants: (1) breached the agreement; (2) refused to pay the amount owed; and (3) failed to answer or otherwise appear in this action. Digcursrsiplp Pursuant to CPLR 32 15(c), 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.. .upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.. . . [Emphasis added]. If a movant fails to meet the one-year statute of limitations, the complaint shall be dismissed. (Peterec-Tolino v Harap, 93 AD3d 577 [lst Dept. 20121). To avoid dismissal of the complaint against a party, the 2 [* 4] moving party must demonstrate that there is both a reasonable excuse for the delay in seeking a default judgment and the existence of a meritorious cause of action. (Butindaro v Grinberg, 57 AD3d 932 [2nd Dept. 20081). The determination of what constitutes a reasonable excuse is under the court s sound discretion. (Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 AD3d 624 [2nd Dept. 20051). In Kay, the plaintiff did not offer a reasonable excuse for failing to move for default judgment until more than four years after defendant defaulted. (Id.). In considering whether to render a default judgment, the court will take into account several factors which are, but not limited to: the length of the delay; the excuse for the delay; willfulness and possibility of prejudice; as well as the merits of the claim or defense. (Guzetti v. City of New York, 32 AD3d 234 [lst Dept. 2006l). Here, plaintiff commenced this action on May 12,20 10, and argues that the defendants failed to answer after they were properly served. It is noted that by decision and order dated , February 25,201 1, this Court denied plaintiffs motion for a default judgment against the individually named defendant, upon submission of proper papers including an affidavit of nonmilitary service. Now, plaintiff seeks the same relief previously sought. Plaintiff did not set forth a statement that a prior similar relief was sought, and subsequently denied. Moreover, leave to renew was granted and should have been interposed within a reasonable amount of time rather than wait over a year to renew its application. CPLR 32 15(c) states in pertinent part: 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 3 [* 5] sufficient cause is shown why the complaint should not be dismissed. It is now over two years since defendant s default and plaintiff has not presented sufficient cause for its delay in seeking a judgment pursuant to CPLR 3215 . Accordingly, it is hereby ORDERED that the plaintiffs motion for default judgment is denied, and the clerk of the Court shall mark this matter dismissed pursuant to CPLR 3215B) / ENTER; V Joan M. Kemey, J.S.C. 4

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