Citibank, N.A. v Wilson

[*1] Citibank, N.A. v Wilson 2021 NY Slip Op 50377(U) Decided on April 30, 2021 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2021
Civil Court of the City of New York, New York County

Citibank, N.A.

against

Krystal Wilson, Defendant.



CV-20388-19



SELIP & STYLIANOU

Attorneys for Plaintiff

By: MITCHELL SLAMOWITZ, ESQ

199 Crossways Park Dr., PO Box 9001

Woodbury, New York 11797

KRYSTAL WILSON

Defendant Pro Se
Sabrina B. Kraus, J.

Plaintiff commenced this action pursuant to a summons and complaint filed on August 15, 2019, seeking judgment in the amount of $2,583.32, based on the allegation that defendant entered into a credit card agreement with plaintiff and failed to pay amounts due under said account.

Defendant appeared pro se on September 19, 2019, and filed an answer which asserted

no defenses, but stated that she would like to set up an affordable payment plan. An initial court date was set for November 25, 2019.

On November 25, 2019, the parties entered into a so-ordered stipulation of settlement which resolved the case for $1300.00 and set a schedule for payments to be made of $35.00 per month until the balance was paid.

PENDING MOTION

On February 10, 2021, plaintiff moved for entry of a judgment, based on its allegation that defendant defaulted in making payments due under the stipulation. Defendant failed to appear and the court adjourned the motion to April 30, 2021 to give defendant a further opportunity to appear.

On April 30, 2021, defendant again failed to appear and the motion was marked [*2]submitted on default.[FN1]

PLAINTIFF'S MOTION IS DENIED

Paragraph 6 of the underlying stipulation of settlement provides for a notice of default and provides in pertinent part:

In the event that Defendant defaults in making any of the payments required herein, then Plaintiff shall mail written notice of default to the Defendant at the address set forth below. If any default remains uncured for ten (10) days from the mailing of the notice, then Plaintiff may, upon notice of motion with Defendant served, enter judgment for the amount sued for in the summons and complaint, less a credit against same for any payments paid hereunder.

The notice of default that Plaintiff relies upon is annexed as Exhibit D to the moving papers. For the reasons stated below, the court finds that the notice is defective, and denies the motion, without prejudice to renewal upon service of a notice of default, that complies with the CPLR and this order.

CPLR 2101 (c) provides:

Caption. Each paper served or filed shall begin with a caption setting forth the name of the court, the venue, the title of the action, the nature of the paper and the index number of the action if one has been assigned. In a summons, a complaint or a judgment the title shall include the names of all parties, but in all other papers it shall be sufficient to state the name of the first named party on each side with an appropriate indication of any omissions.

The notice of default is a paper served on defendant pursuant to this action. Plaintiff is therefore required to identify it as such, by including a caption and appropriate label.

This requirement is reinforced in the court rules for the Civil Court of the City of New York, § 208.4 of which provides in pertinent part:

The party causing the first paper to be filed shall obtain an index number and communicate it forthwith to all other parties to the action. Thereafter such number shall appear on the outside cover and first page, to the right of the caption, of every paper tendered for filing in the action. Each such cover and first page also shall contain an indication of the county of venue and a brief description of the nature of the paper. In addition to complying with the provisions of CPLR 2101, every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required ...

NY Ct. R. 208.4 (McKinney)(Emphasis added).

Clearly, the intent of the statute is that it be clear to a defendant when a paper is served that it is in reference to this lawsuit. This is a reasonable requirement, particularly in consumer credit cases, where many defendants, like the defendant in this case are pro se and without the [*3]benefit of counsel.

Here, as a condition precedent to plaintiff's right to enter judgment pursuant to the stipulation of settlement, plaintiff was required to serve defendant with a notice of cure. It is essential that the party seeking a default judgment comply with the notice to cure provisions contained in a stipulation of settlement because it provides the defaulting party notice and an opportunity to cure the defects before the aggrieved party can enter judgment for what is typically a higher amount (see 542 Holding Corp. v. Prince Fashions Inc., 46 AD3d 309, 310 [1st Dept 2007] [citations omitted] ["[t]he purpose of a notice to cure is to specifically apprise the [defendant] of claimed defaults in its obligations under the [stipulation of settlement] and of the [default provisions] of the [contract] if the claimed default is not cured within a set period of time"]; see also Manhattan College v. Akinbola—Lee, 2008 NY Slip Op 50337(U) [Nassau Dist Ct]; J.T.M. Group v. Fleischman, 2001 NY Slip Op 40456(U), 1 [App Term, 9th & 10th Jud Dists] ). CACV of Colorado, LLC v. Atekha, 24 Misc 3d 1250(A) (Civ. Ct. 2009).

The "notice" annexed to Plaintiff's moving papers has no caption, it is in the form of a letter. It is not clear from the face of the document that is specifically refers to this action, it does not advise that upon a failure to cure plaintiff will move for a judgment pursuant to the stipulation and it fails to meet the CPLR requirements for a paper served on a party.

Based on the foregoing, the motion is denied without prejudice to renewal upon service of a proper notice of default.

This constitutes the decision and order of the court.

Dated: New York, New York

April 30, 2021

_______________________

Hon. Sabrina B. Kraus, JCC Footnotes

Footnote 1: Once the action was assigned to this court (Kraus,J), the court observed that no email was listed for defendant. The Court Attorney called defendant, obtained her email address and sent an email to both parties advising of the pending motion and including the link for the April 30, 2021 appearance.