Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff American Express National Bank (hereinafter plaintiff or AMEX) filed on February, 21, 2023, under motion sequence number one, for an order pursuant to CPLR 3215 awarding a default judgment in its favor against the defendant Mekan Altayev (hereinafter defendant) as to plaintiff’s causes of action. This motion is unopposed. Amended Notice of Motion1 Additional Notice of Consumer Credit Action Affirmation in Support Exhibits 1-5 Affirmation of Non-Expiration of Statute of Limitations Bill of Costs Exhibits A to C Affidavit of Service February 2023 Affidavit of Service April 2023 DECISION & ORDER BACKGROUND On November 2, 2022, the plaintiff commenced the instant action arising out of a consumer credit transaction to recover damages for breach of contract, among other things, by filing a summons, complaint, and one annexed exhibit labeled one (hereinafter the commencement papers) with the Kings County Clerk’s office (hereinafter KCCO). The complaint alleges thirty (30) allegations of facts in support of three causes of action for breach of contract, account stated, and unjust enrichment. The commencement papers allege the following salient facts. The plaintiff is the original creditor, and the defendant is an individual and holder of a Blue Cash Preferred Card from AMEX (hereinafter the credit card). The defendant by accepting and using the credit card, the defendant agreed to the terms and conditions set forth in the Agreement Between American Express Cardmember and American Express National Bank (hereinafter the Agreement). The defendant used the credit card to charge various items for which the plaintiff never paid. The plaintiff sent monthly statements to the defendant for the account showing the minimum amount due on the credit card. On May 25, 2022, the defendant’s final payment of $1000.00 posted to the account. A final statement balance was sent to the defendant on September 21, 2022. The most recent account balance recorded was $25,584.60. The plaintiff alleges that the defendant’s failure to make minimum payments constituted a default under the agreement. The plaintiff suspended the defendant’s charge privilege on the credit card and the outstanding balance became due in its entirety, owing the balance of $27,125.79. The plaintiff further alleges that the account is not charged-off.2 MOTION PAPERS The plaintiff’s motion papers consist of an amended notice of motion, two affirmations of counsel, and five annexed exhibits labeled 1 through 5. Exhibit 1 is a copy of the summons and complaint dated October 27, 2022. Exhibit 2 is the affidavit of service of the summons and complaint dated December 15, 2022. Exhibit 3 is the affidavit of service of the summons and complaint’s additional service by mail dated December 29, 2022. Exhibit 4 is the affidavit of service of non-military service dated January 20, 2023. Exhibit 5 includes an affidavit of fact by the original creditor dated January 20, 2023. Additionally, the plaintiff’s papers also include two affirmations of service upon the defendant pursuant to CPLR 3215 (g)(3)(i), a notice pursuant to 22 NYCRR 202.27-b, and three standalone exhibits labeled A through C. The notice pursuant to 22 NYCRR 202.27-b is titled Additional Notice of Consumer Credit Action and also includes a copy of the affidavit of service of the summons and complaint. Exhibit A is described as an AMEX cardmember agreement. This is identical to Exhibit A filed with the commencement papers. Exhibit B is described as the last payment. Exhibit C is a copy of the defendant’s AMEX balance statement with a December 22, 2022 closing date. LAW AND APPLICATION In the instant motion, the plaintiff seeks leave to enter a default judgment against Mekan Altayev pursuant to CPLR 3215. CPLR 3215 provides in pertinent part as follows: “(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him… (f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint…and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party…Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney.” On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing (see CPLR 3215 [f], Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011]). CPLR 3215(f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]). In support of the motion, the plaintiff submits an affidavit of service that states on December 9, 2022, the defendant was served with the commencement papers via personal service pursuant to CPLR 308 (2) effectuating service upon “John Doe,” a person of suitable age and discretion at an address alleged to be the defendant’s residence, which was later followed by a mailing on December 13, 2022, by first class mail. The plaintiff also submitted an additional affidavit of service that states that on December 29, 2022, a copy of the summons was mailed via first-class mail to the defendant’s residence. Inasmuch as the instant complaint is not verified by the plaintiff, it may not be used as an affidavit of the party pursuant to CPLR 105 (u). However, in this case the motion is supported by an affidavit of fact by the original creditor’s representative, Mehdi Touhdi, which sets forth sufficient proof to establish a viable claim against the defendant. CPLR 3215(g) sets forth when a movant is required to provide notice to a non-appearing defendant notice of an application or motion for leave to enter a default motion (Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 120 [2d Dept 2015]). CPLR 3215(g)(3)(i) provides in pertinent part that: “special notice requirements apply where 1) the action sounds in the non-payment of a contract, as opposed to tort, 2) the defendant is a natural person, and 3) the defendant has, in fact, failed to appear in the action. An additional copy of the summons, beyond the original service of process, must be sent by first-class mail to the defendant’s residence in an envelope marked personal and confidential, at least 20 days before entry of the default judgment” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C3215:25). Here, the plaintiff annexed a copy of an affidavit of service in compliance with CPLR3215 (g)(3)(i). The affidavit states that on February 15, 2023, a copy of notice of motion and its supporting documents were mailed to the defendant’s residence in an envelope marked “personal and confidential” via first-class mail. The plaintiff filed an amended notice of motion on May 5, 2023 and filed another affidavit of service pursuant to CPLR 3215(g)(3)(i). This affidavit avers that on April 27, 2023, the amended notice of motion for the default judgment was mailed to the defendant’s residence via first-class marked “personal and confidential. The plaintiff has demonstrated compliance with CPLR 3215(g)(3)(i). The summons in the instant action has a heading marked “Consumer Credit Transaction.” 22 NYCRR 202.27-a (a)(1) defines a consumer credit transaction as follows: “For purposes of this section a consumer credit transaction means a revolving or open-end credit transaction wherein credit is extended by a financial institution, which is in the business of extending credit, to an individual primarily for personal, family or household purposes, the terms of which include periodic payment provisions, late charges, and interest accrual. A consumer credit transaction does not include debt incurred in connection with, among others, medical services, student loans, auto loans or retail installment contracts. In addition to compliance with CPLR 3215, Uniform Civil Rule for the Supreme Court and the County Court 202.27-a set forth the requirements for a default judgment in a consumer credit matter. Where the plaintiff is the original creditor, a plaintiff must submit an affidavit of facts by the original creditor, and an affirmation of the non-expiration of the statute of limitations executed by counsel (22 NYCRR 202.27-a [c-f]). Furthermore, 22 NYCRR 202.27-a (g) requires the following: “The affidavits required by this section shall be supported by exhibits, including a copy of the credit agreement as defined in this section, the bill of sale or written assignment of the account where applicable, and relevant business records of the Original Creditor that set forth the name of the defendant; the last four digits of the account number; the date and amount of the charge-off balance; the date and amount of the last payment, if any; the amounts of any post-charge-off interest and post-charge-off fees and charges, less any post-charge-off credits or payments made by or on behalf the defendant; and the balance due at the time of sale.” In support of its default motion AMEX includes: an affidavit of fact as the original creditor; an affirmation of the non-expiration of the statute of limitations executed by its counsel; a copy of its credit agreement with the defendant; AMEX statement records which bear the defendant’s name and the last four digits of the subject account. In the affidavit of fact by the original creditor, Mehdi Touhidi, AMEX’s representative, sets forth that the plaintiff, a financial institution, entered into a credit agreement with the defendant wherein the defendant agreed to pay AMEX for all goods, services and cash advances provided pursuant to the credit agreement. The account is a revolving account, where periodic statements were provided to the defendant. The affidavit includes date of the last payment by the defendant, the balance due and that there is no charge off amount, interest, or credit. The plaintiff has demonstrated compliance with 22 NYCRR 202.27-a (c-g). Based upon the foregoing, there is no dispute the instant action involves a consumer transaction. As such the Uniform Court Rules set forth an additional notice for consumer credit transactions. 22 NYCRR 202.27-b provides in pertinent part that: “(1) At the time of filing with the clerk the proof of service of the summons and complaint in an action arising from a consumer credit transaction, or at any time thereafter, the plaintiff shall submit to the clerk a stamped unsealed envelope addressed to the defendant together with a written notice, in both English and Spanish,… The face of the envelope shall be addressed to the defendant at the address at which process was served, and shall contain the defendant’s name, address (including apartment number) and zip code. The face of the envelope also shall contain, in the form of a return address, the appropriate address of the clerk’s office to which the defendant should be directed. These addresses are: [INSERT APPROPRIATE COURT ADDRESS OR ADDRESSES] (2) The clerk promptly shall mail to the defendant the envelope containing the additional notice set forth in paragraph (1). No default judgment based on defendant’s failure to answer shall be entered unless there has been compliance with this subdivision and at least 20 days have elapsed from the date of mailing by the clerk. No default judgment based on defendant’s failure to answer shall be entered if the additional notice is returned to the court as undeliverable, unless the address at which process was served matches the address of the defendant on a Certified Abstract of Driving Record issued from the New York State Department of Motor Vehicles. Receipt of the additional notice by the defendant does not confer jurisdiction on the court in the absence of proper service of process.” Here, the exhibit annexed in the motion titled “Additional Notice of Consumer Credit Action filed with the KCCO on February 21, 2022, is not sufficient to demonstrate the plaintiff’s compliance with 22NYCRR 202.27-b. The affidavit annexed contains only the written notice in English and Spanish but does not provide a copy of the stamped envelope addressed to the defendant that must be submitted to the clerk in order to trigger the clerk’s mailing of the notice. Accordingly, the plaintiff has failed to establish compliance with 22 NYCRR 202.27-b and thereby has failed to demonstrate entitlement to default judgment against defendant Mekan Altayev. CONCLUSION The motion plaintiff American Express National Bank for an order pursuant to CPLR 3215 awarding a default judgment in its favor and against the defendant Mekan Altayev, as to plaintiff’s causes of action is denied without prejudice. The foregoing constitutes the decision and order of this Court. *Researched and drafted with the assistance of Melissa Esther Canteño Cardenas, a graduate of John Jay College of Criminal Justice Dated: August 24, 2023
