The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 were read on this motion for DEFAULT JUDGMENT. DECISION + ORDER ON MOTION Upon the foregoing documents, plaintiff’s motion for entry of a default judgment and for leave to amend the caption is granted in part, in accord with the following memorandum decision. Background In this action to recover amounts owed for goods sold and delivered, plaintiff Wow-Shine International Trade Limited (“Plaintiff”) moves for entry of a default judgment against defendants Bleu Coffee LLC (“Bleu”) and Jeffery Gold (“Gold”). Plaintiff also moves for leave to amend the case caption to add the name Jeffery Goldenstein as an alias name of Gold. Plaintiff commenced this action by filing a summons with notice on May 7, 2019, followed by a verified complaint on July 8, 2019 (NYSCEF Doc. Nos. 1, 3). An amended complaint was filed on June 18, 2021 (NYSCEF Doc. No. 8). An affidavit of service filed in the action on June 22, 2019 indicates that a copy of the summons with notice was served upon Gold by service upon a person of suitable age and discretion at the defendant’s actual place of business on June 11, 2019 and a copy was mailed to him on June 12, 2019 (NYSCEF Doc No. 2). An affidavit of service filed on July 22, 2019 attests to service upon Bleu by service upon the Secretary of State on July 11, 2019 (NYSCEF Doc No. 5). Neither defendant has answered the complaint or otherwise appeared in the action to date. On April 3, 2021, Plaintiff submitted a proposed judgment pursuant to CPLR 3215 (a), but the judgment was rejected by the Clerk because it was submitted more than one year after the date of default. Plaintiff now moves for entry of a default judgment against both defendants and to amend the caption of the complaint to add the alias Jeffery Goldenstein to defendant Gold. There is no opposition to the motion. Discussion As a threshold issue, Plaintiff also moves this court to overlook its failure to file the motion for default within one year of the default. Pursuant to CPLR 3215 (c), “[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.” “The language of CPLR 3215(c) is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned” (Wells Fargo Bank, N.A. v. Martinez, 181 AD3d 470, 470 [1st Dept 2020]). “Notwithstanding, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed (CPLR 3215[c])” (id.). It has been further recognized that “as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” (Brown v. Rosedale Nurseries, Inc., 259 AD2d 256, 257 [1st Dept 1999]). As set forth in the affidavit of service, Plaintiff served the summons with notice upon Bleu by service upon the Secretary of State on July 11, 2019 (NYSCEF Doc No. 5). Where a corporation is served by service upon the Secretary of State pursuant to BCL 306 (b)(1), service is complete upon delivery of the summons and complaint to the secretary state and the defendant then has 30 days to appear in the action (BCL 306 [b][1] ["Service of process on such corporation shall be complete when the secretary of state is so served"; CPLR 320 [a]). The deadline for Bleu to appear was, therefore, August 10, 2019 (CPLR 320 [a]). Consequently, the original deadline for Plaintiff to move for entry of a default judgment was August 10, 2020. Plaintiff’s time to move for entry of a default judgment was also tolled from March 20, 2020 until November 4, 2020 by various Executive Orders issued by Governor Andrew Coumo in the wake of the COVID-19 pandemic (see, e.g., Executive Order No. 202.8 [9 NYCRR 8.202.8]). A period of 223 days passed between the date of default, August 10, 2019, and the beginning of the toll on March 20, 2020, leaving 142 days to make the motion after the conclusion of the toll on November 4, 2020. Therefore, including the toll, Plaintiff’s deadline to move for entry of a default judgment was March 26, 2021. Plaintiff first sought entry of a judgment on April 3, 2019 by submitting a proposed judgment to the Clerk of the Court pursuant to CPLR 3215 (a). The proposed judgment was rejected because Plaintiff’s statutory deadline to seek entry of a judgment from the Clerk had elapsed. Plaintiff then filed this motion on June 18, 2021. In light of Plaintiff’s failure to move within one year, the court must determine whether sufficient cause exists regarding why the complaint should not be dismissed. The Swidler affirmation asserts that Plaintiff timely sought entry of a judgment by the Clerk within one year because the “very earliest a default money judgment court have been sought…is August 22, 2019 (30 days after the affidavit if service was efiled”). This appears to be an oversight by Plaintiff’s counsel of the provision of BCL 306 [b][1] which provides that “[s]ervice of process on such corporation shall be complete when the secretary of state is so served,” in favor of the rule for substitute service upon an individual whereby service of process is complete ten days after filing of the affidavit of service (CPLR 308 [2]). Plaintiff’s counsel thereafter calculates the deadline to move for entry of a default from this incorrect date of default, which results in an incorrect deadline to move for entry of a default judgment. Effectively, this amounts to law office failure. Plaintiff also offers, as further explanations for its failure to seek timely entry of a default judgment within one year of default, the ongoing COVID-19 pandemic, temporary closure of the Courts for a period of time during the pandemic, and “difficulties encountered in communications with plaintiff in China” (Swidler aff 7). The Appellate Division, First Department, has held that law office failure constitutes a reasonable excuse for the failure to timely move for a default judgment, particularly where there is no indication that the defaulting party has been prejudiced by the delay (see Bazac v. Odelia Enters., 272 AD2d 226, 226-27 [1st Dept 2000]). In light of the law office failure being specifically identified here and in light of the additional excuses proffered by Plaintiff’s counsel, and in the absence of undue prejudice against Bleu, it is the determination of this court that sufficient cause why the complaint should not be dismissed has been shown. Therefore, this court will consider Plaintiff’s motion for entry of a default judgment. A plaintiff that seeks entry of a default judgment for a defendant’s failure to answer must submit proof of service of the summons and complaint upon the defendant, proof of the facts constituting the claim, and proof of the defendant’s default (CPLR 3215). “The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts” (Feffer v. Malpeso, 210 AD2d 60, 61 [1st Dept 1994]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). Nevertheless, “CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action” (Guzetti v. City of New York, 32 AD3d 234, 235 [1st Dept 2006] [internal quotations and citations omitted]). As the motion pertains to Bleu, Plaintiff has met its burden on this motion by submission of the affidavit of service demonstrating service of the summons and notice upon Bleu (NYSCEF Doc. No. 5), an affirmation of its counsel, Steven A. Swidler, Esq., attesting to the default (NYSCEF Doc. No. 10, 4), the verified complaint (NYSCEF Doc. No. 3), and an affidavit of Wei Wei Li, an authorized agent of Plaintiff, which attests to the facts constituting Plaintiff’s claim (NYSCEF Doc No. 11). In the affidavit of facts, Li reaffirms the allegations set forth in the verified complaint and attests to the amount owed. As set forth in the verified complaint, Plaintiff sold and delivered certain apparel goods to Bleu from the period between May 2, 2018 through December 28, 2019, which Bleu accepted, but did not remit for payment for (NYSCEF Doc No. 3
