Colonial Funding Network, Inc . v Austin James Assoc., Inc.

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Colonial Funding Network, Inc . v Austin James Assoc., Inc. 2018 NY Slip Op 32614(U) October 12, 2018 Supreme Court, New York County Docket Number: 161779/2015 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/15/2018 09:18 AM NYSCEF DOC. NO. 32 INDEX NO. 161779/2015 RECEIVED NYSCEF: 10/15/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOEL M. COHEN PART IAS MOTION 45 Justice ---------------------------------------------------------------------------X INDEX NO. 161779/2015 COLONIAL FUNDING NElWORK, INC .. MOTION DATE 08/31/2018 Plaintiff, MOTION SEQ. NO. 001 -vAUSTIN JAMES ASSOCIATE, INC.,CURTIS HERMAN DECISION AND ORDER Defendant. ---------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21,22,23,24,25,26,27,28,29, 30 JUDGMENT - DEFAULT were read on this motion to/for Upon the foregoing documents: Plaintiff seeks entry of default judgments against the Defendants. Its motion comes well beyond the one-year period set forth in CPLR § 3215(c) for seeking such relief after the purported default. Plaintiff has not shown sufficient cause for failing to make its motion in a timely manner. Accordingly, the motion is denied and the complaint is dismissed as abandoned. Plaintiff, Colonial Funding Network, Inc. ("Colonial Funding") filed its Summons and Verified Complaint in this action on November 16, 2015. (NYSCEF 1). Plaintiff completed service of the summons and complaint on all Defendants on November 25, 2015. (NYSCEF 24). On January 20, 2016 Plaintiff did an additional mailing of the summons and complaint to all 161779/2015 COLONIAL FUNDING NETWORK, INC. vs. AUSTIN JAMES ASSOCIATE, INC. Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 10/15/2018 09:18 AM NYSCEF DOC. NO. 32 INDEX NO. 161779/2015 RECEIVED NYSCEF: 10/15/2018 Defendants in compliance with CPLR § 3215(g)(3). (NYSCEF 25). To date, Defendants have not answered or otherwise appeared. On July 31, 2018 Plaintiff filed the instant motion for default. Plaintiff acknowledges that the statutory deadline for obtaining a default judgment is one year from the date of the default, and that it failed to make its motion in a timely manner. See CPLR §3215( c). Indeed, the instant motions were filed more than two years after the alleged defaults. Plaintiff contends there is "sufficient cause" for its failure to meet the statutory deadline, and that the complaint therefore should not be dismissed under CPLR §3215( c). Plaintiff's purported explanation for its failure to file the instant motion within one year of the alleged default is that there were personnel changes in its internal legal department, and a change of external counsel, between July 2017 and February 2018. Plaintiff's general counsel (who was hired at the end of June 2017) asserts that it was not until the completion of an internal audit of the legal department at an unspecified date in 2017 that Plaintiff ~oncluded that a motion for default judgment had not been timely filed. (Athanasopoulos Affirmation NYSEF 18, Carlson Affidavit NYSCEF 19) Failure to comply with CPLR § 3215(c) requires dismissal of the Complaint unless sufficient cause is shown why the Complaint should not be dismissed. Id. (absent sufficient cause, the court "shall dismiss the complaint as abandoned") (emphasis added). "It is plaintiff's burden to show a lack of intent to abandon the action and to demonstrate both a reasonable excuse for the period of non-prosecution and merit to the action." Sports Legends, Inc. v. Carberry, 38 A.D.3d 470, 470 (1st Dep't 2007) (emphasis added; citations omitted); see also Giglio v. NT/MP, Inc, 86 A.D.3d 301, 301 (2nd Dep't 2011) (a showing of sufficient c.ause requires "both a reasonable excuse for the delay in timely moving for a default judgment, plus a 161779/2015 COLONIAL FUNDING NETWORK, INC. vs. AUSTIN JAMES ASSOCIATE, INC. Motion No. 001 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 10/15/2018 09:18 AM NYSCEF DOC. NO. 32 INDEX NO. 161779/2015 RECEIVED NYSCEF: 10/15/2018 demonstration that the cause of action is potentially meritorious."). The determination of whether an excuse is sufficient in any given instance is committed to the sound discretion of the motion court.. Seide v. Calderon, 126 A.D.3d 417, 417 (1st Dep't 2015). The Court does not find the excuse offered by Plaintiff, a failure of communication within its internal legal department and with external counsel, to be persuasive. See Colonial Funding Network, Inc. v. On Demand Delivery, Inc., 2018 WL 4278390 (Sup. Ct. New York County, September 7, 2018) (denying motion for default judgment by Colonial Funding under substantially the same circumstances as presented in the instant case); Colonial Funding Network, Inc. v. Floor Play, LLC, 2018 WL 4005862 (Sup. Ct. New York County, August 22, 2018) (same). Under the terms of CPLR §3215(c), excusing a party from compliance with the one-year deadline for seeking a default judgment is the exception rather than the rule. A failure of a party or its counsel to keep track of the case, without extenuating circumstances more compelling than those present here, does not constitute sufficient cause. See, e.g., Herzbrun v. Levine, 23 A.D.2d 237, 238 (1st Dep't 1965) (the fact that plaintiffs moved out of the country ' and "lost contact" with their attorney did not constitute sufficient cause under CPLR §3215(c)); cf e.g., Smith v. Arce, 78 A.D.3d 612 (1st Dep't 2000) (sufficient cause was found where delay was explained by law office failure in the aftermath of the sudden death of lawyer's child). Accordingly, dismissal of the complaint is mandated under CPLR §3215(c) Therefore, it is: ORDERED Plaintiffs Motion for Default Judgments is denied; it is further ORDERED Plaintiffs Complaint is dismissed as abandoned, without prejudice and without costs; and it is further 161779/2015 COLONIAL FUNDING NETWORK, INC. vs. AUSTIN JAMES ASSOCIATE, INC. Motion No. 001 3 of 4 Page 3 of4 ' [*FILED: 4] NEW YORK COUNTY CLERK 10/15/2018 09:18 AM NYSCEF DOC. NO. 32 INDEX NO. 161779/2015 RECEIVED NYSCEF: 10/15/2018 ORDERED Plaintiff is directed to serve Defendants with a copy of this Order together with HON. JOEL. . Notice of Entry. M.• Cv_l-/.ti~ "A = _ . . d~s-e·. 10/12/2018 DATE CHECK ONE: § CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NO -FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 161779/2015 COLONIAL FUNDING NETWORK, INC. vs. AUSTIN JAMES ASSOCIATE, INC. Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of 4

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