Recitation of papers received on this motion submitted on October 5, 2020: Papers Numbered Motion 1 DECISION and ORDER Plaintiff moves for an Order pursuant to CPLR§2001 and CPLR§2004 extending the time to serve the Defendant with an Order dated February 15, 2017. This instant action was commenced as a result of the alleged breach of a retail installment contract. Plaintiff was granted a default judgment in 2011, which was vacated, and then reinstated on February 15, 2017. The February 15, 2017 Order directed the Plaintiff to serve a copy of the Order with Notice of Entry upon the Defendant within 30 days of entry of the Order. The Order was entered by the clerk on February 16, 2017. Thus, the deadline to serve the Order was March 16, 2017. However, the Plaintiff stated that it was not able to serve the Defendant because it did not receive the Order from the Court and only received the Order on February 14, 2020 after having made several requests to the Court to receive the Order. Significantly, the instant motion was filed on March 2, 2020, nearly three years after the deadline. CPLR §2001 allows the Court to permit the correction of a mistake, omission, defect, irregularity, in the filing process, or to disregard same if a substantial right of a party is not prejudiced. CPLR §2004 allows the Court to extend the time fixed by statute, rule or order for doing any act on terms that are just and for good cause shown, whether or not the application is made after the expiration of the time fixed. The Court is not persuaded that CPLR§2001 is applicable as the mistake herein has to do with the service of an Order and not the process of filing pleadings. Nonetheless, permitting the late service of the Order prejudices the Defendant’s substantial rights by reviving a defunct Order that has adverse consequences to the Defendant. In addition, the motion was served upon the Defendant’s prior attorney. Therefore, it is unknown whether the Defendant even got notice of the motion, which also substantially affects the Defendant’s rights to respond to the motion and be heard. Also, the Court finds that Plaintiff has failed to establish, pursuant to CPLR §2004, good cause for the nearly three year delay and blaming the Court for the delay is unreasonable. Although the Court mails copies of Decisions as a courtesy to litigants, due diligence dictates that the Plaintiff, who is represented by counsel, follow up and obtain a copy of the Order within a reasonable time frame. The Plaintiff failed to provide proof or details of its bald assertion that it made “several requests of the Court” which basically places the blame for the delay on the Court. Moreover, the Plaintiff cannot blame covid19 for the delay as the motion was signed February 26, 2020 and filed March 2, 2020. The Plaintiff’s excuse which amounts to law office failure is not reasonable due the amount of time that has elapsed. Guided by the reasoning in the Court of Appeals case, Brill v. City Of New York, 2 NY3d 648 (2004), a showing of good cause for the delay requires “a satisfactory explanation for the untimeliness, rather than simply permitting meritorious, nonprejudicial filings, however tardy…to end the practice of eleventh-hour [or after the fact filings]…a perfunctory excuse, cannot be ‘good cause.’” CPLR §3215 (c), default not entered within one year, is also instructive. 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… “Equity aids the vigilant, not those who slumber on their rights.” [Bouvier, John, A Law Dictionary, Adapted to the Constitution and Laws of the United States. (1856)]. Accordingly, it is hereby Ordered, the Plaintiff’s motion is denied and the case is dismissed. Dated: October 30, 2020
