In this action to collect on a commercial loan, plaintiff American Express National Bank, a “national bank located in Utah,” moves for default judgment under CPLR 3215 against defendants Hybrid, Inc., apparently a California company, and Sanaa Murad, a California resident. But plaintiff did not move for default judgment within one year, as required by CPLR 3215 (c). Nor, in any event, has plaintiff established proper service on defendants or the facts constituting its claims against them. Plaintiff served defendants under CPLR 313 on February 10, 2021. (NYSCEF Nos. 3, 4 [affidavits of service].) It filed affidavits of service on the defendants on April 28, 2021. (See id.) And it moved for default judgment on April 18, 2022. (See NYSCEF No. 6.) The question, then, is whether defendants’ time to appear is measured from the date of service (in which case the default-judgment motion is untimely), or from the date of filing of the affidavits of service (in which case the motion is timely). Plaintiff contends, without citation to authority, that the starting point is the affidavit-filing date. (NYSCEF No. 11 at 2 n 2.) Considering the matter as an issue of first impression, this court disagrees. CPLR 320 (a) provides that if service was made under CPLR 313, “the appearance shall be made within thirty days after service is complete.” CPLR 320 does not, however, define when CPLR 313 service is complete. This court is unaware of precedent addressing this particular issue. The court concludes that for appearance-deadline purposes, determining when CPLR 313 service is complete entails looking through to the particular method(s) of service used. CPLR 313 permits out-of-state service “in the same manner as service is made within the state.” Thus, determining when CPLR 313 out-of-state service is “complete” for appearance-deadline purposes should depend on the chosen means of service, just like in-state service. In other words, out-of-state service by personal delivery will be complete upon delivery (see CPLR 308 [1]; CPLR 311 [a] [1]); out-of-state service by leave-and-mail or nail-and-mail substituted service will be complete 10 days from filing of the affidavit of service (see CPLR 308 [2], [4]); and so on. Here, the affidavits reflect that on February 10, 2021, plaintiff served defendant Murad in California by personal delivery (NYSCEF No. 3), and served defendant Hybrid by personal delivery in California to an authorized agent, namely Murad (NYSCEF No. 4). Service was complete upon delivery. Defendants’ deadline to appear and respond — under CPLR 313 and 320, 30 days from the completion of service — was March 14, 2021, because the 30th day of the period fell on a Saturday. (See General Construction Law §25-a.) Plaintiff’s default-judgment motion, filed more than one year later, on April 18, 2022, was untimely. (CPLR 3215 [c].) CPLR 3215 (c) requires dismissal of an untimely default-judgment motion unless movant provides “sufficient cause…why the complaint should not be dismissed.” Plaintiff does not give sufficient cause here. Plaintiff’s affirmation of counsel cites cases involving delays due to ongoing settlement negotiations. (NYSCEF No. 11 at 2 n 2.) But plaintiff has not shown that it was engaged here in settlement negotiations. Counsel indicates that “over 40 phone calls [were] made to Defendants since the complaint was filed” (id.) — but not whether any of those telephone calls was answered or returned. This court is skeptical, to say the least, that a party’s making a series of debt-collection calls (or leaving a series of debt-collection messages) may, standing alone, constitute “sufficient cause” to ward off a CPLR 3215 (c) dismissal. The only other sufficient-cause factor plaintiff identifies is that it mailed the additional notice to defendants required by CPLR 3215 (g) in August 2021, before the one-year period had run. (Id.) But that timely mailing only raises the question why plaintiff did not move for default judgment in the fall of 2021, shortly after that mailing, rather than waiting until mid-April 2022.1 Plaintiff has not shown sufficient cause for its failure to move for default judgment within one year of the expiration of defendants’ defaults.2 Accordingly, it is ORDERED that American Express’s motion for default judgment under CPLR 3215 is denied, and the action is dismissed as against all defendants; and it is further ORDERED that American Express serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly. Dated: August 3, 2022
