Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Papers Numbered Plaintiff’s Notice of Motion for Default Judgment, Affirmation in Support of Plaintiff’s Motion for Default Judgment, with annexed exhibits, Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Default Judgment (dated December 14, 2021), Affidavit of Facts by Original Creditor, with annexed exhibits (dated July 2, 2021)…1 DECISION and ORDER Plaintiff American Express National Bank (hereinafter, “Plaintiff”), commenced the underlying action against the Defendants, Anthony Ferrara and Ben Bay Realty Company of Staten Island LLC (hereinafter, “Defendants”), by filing a Summons and Complaint on September 25, 2019. Plaintiff seeks $15,273.91, the costs and disbursements of this action, and such other and further relief as the Court deems just and proper. On December 17, 2021, Plaintiff filed the within motion seeking a default judgment against Defendants pursuant to CPLR §3215(a) for Defendants’ failure to file a timely answer. Defendants have also failed to file any opposition to this motion. Due to Defendants’ failure to appear at the return date of this motion on February 1, 2022, the matter was marked fully submitted and the Court reserved decision on the motion. Upon consideration of the papers submitted and the procedural history of this matter, the Court hereby denies Plaintiff’s motion in its entirety. Procedural History Plaintiff served the Summons and Complaint upon Defendant Ben Bay Realty Company of Staten Island LLC (“Ben Bay Realty”) by service upon the Secretary of State of the State of New York on October 29, 2019. On November 1, 2019, Plaintiff filed the Affidavit of Service for service upon Defendant Ben Bay Realty with the Court. Plaintiff served Defendant Anthony Ferrara (“Ferrara”) with the Summons and Complaint by service upon a person of suitable age and discretion on January 20, 2020 and by mail on January 27, 2020. Plaintiff filed the Affidavit of Service for service upon Defendant Ferrara with the Court on February 4, 2020. After Defendants failed to answer or otherwise appear in this action, Plaintiff filed the present motion for default judgment on December 17, 2021. Discussion A party seeking to move for default judgment pursuant to CPLR §3215(c) must make such application within one year of the defendant’s default. According to the statute, 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. A motion by the defendant under this subdivision does not constitute an appearance in the action. CPLR §3215(c) In light of the COVID-19 pandemic, former Governor Andrew M. Cuomo issued Executive Order 202.8 on March 20, 2020, which held that In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of the state, including, but not limited to, the…civil practice law and rules…, or by any other statute, local law, ordinance, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. Subsequent to the issuance of this executive order, former Governor Cuomo issued a series of executive orders to extend the tolling period through November 3, 2020. (See Brash v. Richards, 195 A.D.3d 582 [2d Dept 2021]; Executive Order Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, and 202.72. See also Echevarria v. Board of Elections in the City of New York, 183 AD3d 857 [2d Dept 2020]). The latest executive order issued by former Governor Cuomo on November 3, 2020 held that the “toll” was no longer in effect as of November 4, 2020. Executive Order No. 202.79 (See 9 NYCRR 8.202.72). Here, the record shows that Defendant Ben Bay Realty was in default as of November 29, 2019. The record also shows that Defendant Ferrara was in default on March 16, 2020. Therefore, pursuant to CPLR §3215(c) and the tolling provisions contained in Executive Order 202.8 et seq., the Court finds that Plaintiff was required to move for a default judgment against Defendant Ben Bay Realty by July 14, 2021. Plaintiff also was required to move for a default judgment under these provisions against Defendant Ferrara by November 1, 2021. Since Plaintiff failed to move for default judgment against both Defendants until December 17, 2021, the Court finds that Plaintiff’s motion is untimely. The Court notes that while Plaintiff concedes that the instant application for default is untimely, Plaintiff requests that the Court excuse and disregard such untimeliness on the grounds that the lateness is “diminimus.” (sic). Citing Sanders v. Aziz, 101 AD2d 734 [1st Dept., 1984], Plaintiff argues that it has a meritorious claim and that the Defendants will not be prejudiced by its “short delay” in moving for a default judgment. However, in Sanders, the First Department excused a three-day delay in filing a motion for default as the delay was “relatively short” and the Court determined that a meritorious claim existed and there was no legal prejudice in allowing the application. Even when a motion for default judgment is unopposed, such a motion made more than one year after the defendant’s default will be denied unless the plaintiff proffers a “reasonable excuse for its delay” and a showing that the complaint was “potentially meritorious.” See DLJ Mortg. Capital, Inc. v. United General Title Ins. Co., 128 AD3d 760 [2d Dept 2015]. “The determination of whether an excuse is reasonably in any given instance is committed to the sound discretion of the motion court.” Deutsche Bank National Trust Company v. Braithwaite, 197 AD3d 55 [2d Dept 2021] (quoting Giglio v. NTIMP, Inc., 86 AD3d 301 [2d Dept 2018]). In the instant matter, the Plaintiff’s delay in filing its motion for default judgment as to each of the Defendants is not de minimis, as alleged by Plaintiff in its Memorandum of Law, nor are the delays “relatively short” as was the case in the three-day delay in Sanders, 101 AD2d at 734. Plaintiff’s motion as to Defendant Ben Bay Realty was filed one hundred and fifty-six (156) days after July 14, 2021, the date by which CPLR §3215(c) requires a default to be taken against a defendant, including the toll period granted under Executive Order 202.8 et seq. Plaintiff’s motion as to Defendant Ferrara was filed forty-six (46) days after November 1, 2021, the date by which CPLR §3215(c) requires a default to be taken against a defendant, including the toll period granted under Executive Order 202.8 et seq. Furthermore, Plaintiff has failed to provide a reasonably excuse for its delay in filing the instant, untimely motion, nor has Plaintiff shown sufficient cause as to why the Complaint should not be dismissed pursuant to CPLR §3215(c). The Court further finds Plaintiff’s attempts to characterize its delay in filing for default judgment to be unavailing and an unacceptable misuse of the tolling provisions under Executive Order 202.8 et seq. The Court notes that the tolling provisions provided under Executive Order 202.8 et seq. were enacted “in accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis.” See Executive Order 202.8. As the Court reviews this matter in February 2022, the public health emergency has significantly abated and any purported need for tolling provisions has waned, as evidenced by the expiration and recission of many pandemic-era executive orders. Therefore, Plaintiff cannot use the tolling provisions under Executive Order 202.8 et seq. as a license to bring an untimely application without providing a reasonable excuse for the delay. To allow any party to use the tolling provisions of Executive Order 202.8 et seq. to bring such an untimely application without a reasonable excuse for such delay would abuse a tolling process that was clearly intended to be temporary in nature. Therefore, Plaintiff’s motion for default judgment is hereby denied, and the Complaint is dismissed as abandoned. The foregoing constitutes the Decision and Order of the Court. Dated: February 15, 2022
