DECISION AND ORDER This is an action seeking reimbursement for medical services provided by Plaintiff under the No-Fault system. By Notice of Motion dated February 15, 2018, Plaintiff moves to vacate an order of administrative dismissal pursuant to CPLR 3215(c) dated March 30, 2017 and for leave to enter a default judgment against Defendant. Defendant opposes the motion.The history of this case which culminated in the CPLR 3215(c) dismissal commenced with the timely purchase of an index number on January 26, 2011. Plaintiff, however, did not serve the summons and complaint on Defendant until June 5, 2013, over two years after the statutory 120-day service period had expired. Plaintiff attributes the delay to law office failure explaining that the office was unaware that it had failed to serve the summons and complaint due to an error caused by transferring files from an old management system to a new system between 2011 and 2012. In 2013, Plaintiff discovered that it did not possess an affidavit of service relative to this case and a process server was sent to serve Defendant in June of that year. Defendant, to date, has not answered. There is no indication in either the record or the parties’ moving papers that Plaintiff ever moved pursuant to CPLR 306(b) for an extension of time to effectuate service.Plaintiff claims that the office filed a motion for a default judgment in July of 2014. Plaintiff states that because Defendant was personally served with process on June 5, 2013 and the affidavit of service was filed on June 6, 2013, it had until July 11, 2014 to move for a default. However, according to Civil Court records maintained for this index number, the motion for a default judgment was filed on August 6, 2014. On that same day, the court issued a “Judgment Rejection Notification.” The reason stated on the notice was “late service.” Plaintiff acknowledges timely receipt of this notice but did not move to cure the defect, claiming that an upgrade in its computer system resulted in the failure to alert a paralegal to draft a motion.Plaintiff took no further action in this case and, in May of 2017, Plaintiff’s office learned that the action was administratively dismissed by an order of Judge Richard Montelione dated March 30, 2017. The order states:“[p]laintiff(s) commenced this action to recover assigned first party no-fault benefits. Defendant failed to answer and more than one year had passed. There being no sufficient cause being shown why the complaint should not be dismissed, pursuant to CPLR 3215(c) it is therefore ordered, that the complaint is dismissed.”Plaintiff now moves to vacate the administrative dismissal arguing that its motion should be granted because the court did not give it prior notice of the impending administrative dismissal. Plaintiff asserts that the court’s failure to give notice deprived the attorneys of an opportunity to be heard. Plaintiff further claims that this lack of notice constitutes its reasonable excuse for the failure to appear on March 30, 2017. Plaintiff also seeks to revive the August 6, 2014 application for a default judgment which it insists the court improperly rejected.It is noted that the administrative dismissal order of March 30, 2017 was issued pursuant to CPLR 3215(c). The Second Department holds that “CPLR 3215(c) provides that ‘[i]f 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…unless sufficient cause is shown why the complaint should not be dismissed’ ” (Myoung Ja Kim v. Wilson, 150 A.D.3d 1019, 1020 [2d Dept. 2017] quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307-308 [2d Dept. 2011]; see HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671 [2d Dept. 2016]).Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed’” (HSBC Bank USA, N.A. v. Grella, 145 A.D.3d at 671, quoting CPLR 3215[c]). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v. Hiyo, 130 A.D.3d 763, 764 [2d Dept. 2015]; see Wells Fargo Bank, N.A. v. Bonanno, 146 A.D.3d 844, 845-846 [2d Dept. 2017]). “‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court’” (Pipinias v. J. Sackaris & Sons, Inc., 116 A.D.3d 749, 752 [2d Dept. 2014] quoting Giglio v. NTIMP, Inc., 86 A.D.3d at 308; see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852 [2d Dept. 2016]). While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure (see CPLR 2005; CEO Bus. Brokers, Inc. v. Alqabili, 105 A.D.3d 989, 990 [2d Dept. 2013]; HSBC Bank USA, N.A. v. Wider, 101 A.D.3d 683 [2d Dept. 2012]; Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963 [2d Dept. 2018]).Plaintiff’s claim that the court was required to give notice prior to the CPLR 3215(c) dismissal based on Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771 (2d Dept. 2017), is erroneous. The dismissal in that case was made pursuant to CPLR 3216, not CPLR 3215(c), which expressly provides that a court may dismiss an action as abandoned “upon its own initiative or on motion” (Ibrahim v. Nablus Sweets Corp., 161 A.D.3d at 961).This case was properly dismissed, sua sponte, pursuant to CPLR 3215(c) as the case lay dormant in the court system without joinder of issue and without a default judgment against Defendant for over three years. Furthermore, this application must be denied as Plaintiff does not submit an affidavit of merit and the excuse of law office failure is vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus, 140 AD3d at 852; Baruch v. Nassau County, 134 A.D.3d 658, 659 [2d Dept. 2015]; Mattera v. Capric, 54 AD3d 827, 828 [2d Dept. 2008]; Ibrahim v. Nablus Sweets Corp., 161 A.D.3d at 963; Private Capital Group, LLC, v. Hosseinipour, 2019 WL 1141605 [2d Dept. 2019]).This case has been riddled with procedural defects since inception. Although Plaintiff purchased the index number within the statute of limitations on January 26, 2011, the summons and complaint were not served on Defendant until June 5, 2013, over two years later. At no time did Plaintiff move for an extension of time to serve Defendant pursuant to CPLR 306(b) and this defect continues to plague this case. Plaintiff offers no reasonable excuse as to why it filed the motion for a default judgement over one year after Defendant defaulted in answering. It is not clear whether the court rejected the default papers because Plaintiff served Defendant beyond the statutory 120-days of filing without leave of court or because Plaintiff filed the motion late. In either case, it is clear that the court rejected Plaintiff’s default judgment as untimely and no motion was made at that time to cure the rejected papers.All of the above demonstrates a general pattern of neglect for which Plaintiff has consistently failed to provide a reasonable excuse or otherwise remedy. Considering the history of procedural defects, this court cannot accept Plaintiff’s vague excuse that the implementation of a new case management and computer system were valid reasons for the office failures over the years and, specifically for the failure to timely file for default judgment which led to the administrative dismissal of March 30, 2017Accordingly, Plaintiff’s motion to vacate the March 30, 2017 order of administrative dismissal pursuant to CPLR 3215(c) is denied and the complaint is dismissed with prejudice.This constitutes the decision and order of this court.Dated: April 1, 2019Brooklyn, NY
