Malen & Associates, PC Steve Ploski
William J. Giacomo, J.
The following papers numbered 1 to 6 were considered on plaintiff's motion for leave to file an affidavit of service nunc pro tunc and for a default judgment against defendant.
Notice of Motion/Affirmation/Exhibits A-D1-........6
Factual and Procedural Background
Plaintiff commenced this action on May 28, 2010 seeking to recover $3, 734.63 pursuant to a revolving credit card agreement. Defendant was served, pursuant to CPLR 308(4), on June 16, 2010. Thereafter, on June 28, 2010, plaintiff filed the affidavit of service in Yonkers City Court rather than with the Westchester County Clerk as required by the CPLR. Defendant neither answered nor appeared by July 16, 2010 and, thus, defaulted in appearing in this action.
In the fall of 2010, plaintiff attempted to obtain a default judgment from the Westchester County Judgment Clerk. On October 6, 2010, plaintiff's submission was rejected because the affidavit of service was not filed with the Westchester County Clerk. On October 28, 2010, plaintiff filed the affidavit of service with the Westchester County Clerk.
On May 20, 2011, plaintiff's second attempt to obtain a judgment by default was rejected by the Westchester County Clerk, this time the reason was that the affidavit of service was not filed with the Westchester County Clerk within 20 days after service as set forth in CPLR 308(4).
Now, on October 11, 2011, almost 15 months after defendant defaulted in appearing or answering, plaintiff moves for leave to file the affidavit of service nunc pro tunc and for a default judgment against defendant.
The relevant statutory provision in this case is CPLR 3215(c) which provides that: "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." (Emphasis added).
The issue presented in this case is whether plaintiff failed to "take proceedings" within one year of defendant's default. While plaintiff attempted to seek entry of a default judgment on two separate occasions plaintiff's application was rejected each time by the Judgment Clerk. It is important to note, when the Judgment Clerk rejected plaintiff's application for a default in May of 2011, plaintiff still had several months to make this motion seeking leave to file the affidavit of service nunc pro tunc and for the entry of a default judgment. Plaintiff, however, did not make this application until 15 months after defendant's default.
In researching what the legislature meant when using the term "take proceedings" under the statute, the Court found very little case law to provide guidance. The few ...