Recitation as required by CPLR 2219 (a) of the papers considered in the review of this Motion: Papers Numbered Notice of Motions & Affts 1 Order to Show Cause Opposition & Affidavits Reply & Affidavits Exhibits Supplemental Affidavits DECISION AND ORDER Upon reading Plaintiff’s Notice of Motion to strike Defendant’s Answer and for permission to enter Judgment, electronically filed on February 24, 2023, together with all supporting documents, Plaintiff’s above motion (“Motion”) pursuant to CPLR 3126, submitted without opposition, is determined as follows. I. Procedural History Plaintiff commenced this action seeking money damages in the amount of $5,881.20 related to an unpaid credit card balance by filing a Summons and Complaint on February 13, 2015 (Viturerira aff, exhibit A). Defendant, pro se, answered in person on February 27, 2015 (Viturerira aff, exhibit B). On May 14, 2015, Plaintiff served Defendant with its first set of interrogatories (Viturerira aff, exhibit D). Plaintiff demanded a response to its interrogatory within 20 days of the date of service, accordingly, Defendant had until June 3, 2015, to respond (Viturerira aff, exhibit D). It is noted that, in the Motion, Plaintiff’s counsel incorrectly averred that Defendant’s response to the interrogatory at issue was due on May 28, 2015 (Viturerira aff, 9). On May 21, 2015, Defendant’s counsel Roman of Roman & Associates, PLLC filed his Notice of Appearance (Viturerira aff, exhibit C). Plaintiff filed a notice of substitution of counsel on November 12, 2020. More than two (2) years later, on February 24, 2023, Plaintiff’s present counsel moved pursuant to CPLR 3126 (3) to strike Defendant’s answer and for entry default judgment against Defendant by filing the Motion. In its Motion, Plaintiff sought a default judgment in the amount of $4,111.56, which is $1,769.64 less than the amount sought in the Summons and Complaint. Plaintiff did not explain the discrepancy between these two figures in its Motion. Plaintiff’s Motion was made returnable on March 24, 2023. On that date, Plaintiff appeared through its counsel. Defendant’s counsel failed to appear. Plaintiff’s counsel advised the Court that Defendant’s counsel failed to appear due to a scheduling conflict and that Defendant’s counsel was unable to locate his client. The matter was adjourned to May 9, 2023. On May 9, 2023, Plaintiff and Defendant both appeared through counsel. During the May 9th appearance, Defendant’s counsel represented to the court that he had not been in contact with his client in years and that he intended to move to be relieved as counsel for Defendant. The matter was adjourned to June 13, 2023. On June 13th Plaintiff appeared through counsel, but Defendant’s counsel once again failed to appear, and the instant Motion was submitted without opposition. To date, Defendant’s counsel has not yet moved to be relieved as counsel. II. Discussion Plaintiff contended that this Court should strike Defendant’s Answer and enter default judgment because Defendant had failed to respond to its interrogatory (Viturerira aff, 2, 3). However, “[t]he striking of an answer is an extreme and drastic penalty, and should not be invoked where the moving affidavit fails to show conclusively that the default was clearly deliberate or contumacious” (Henry Rosenfeld, Inc. v. Bower and Gardner, 161 AD2d 374 [1st Dept 1990] citing Cinelli v. Radcliffe, 59 AD2d 829 [2d Dept 1970]). Here, Plaintiff failed to make the requisite showing. Here, Plaintiff served the interrogatory at issue upon the Defendant on May 14, 2015, approximately seven (7) years and nine (9) months before Plaintiff brought the instant Motion. At that time, Defendant’s counsel had not yet entered his appearance. Defendant’s counsel appeared in court and filed his notice of appearance seven (7) days later in 2015. Plaintiff’s “[g]ood [f]aith” efforts to obtain the discovery at issue in this Motion were made in September 2022 and February 2023, respectively (Vitureira aff, p 2). These efforts came several years after the interrogatory was originally served. Under the circumstances, Defendant’s failure to respond appears to be inadvertent rather than willful, contumacious, or in bad faith. And Plaintiff’s affidavit was not sufficient to establish otherwise. Because the interrogatory was served on the Defendant — not his counsel — it is unclear whether Defendant’s attorney ever had the opportunity to review the document and advise his client regarding his discovery obligations. And Plaintiff’s “[g]ood [f]aith” efforts to obtain a response to the interrogatory at issue came many years after it served the instant discovery demand. Given the fact that Defendant’s counsel evidently lost contact with Defendant during the many years this case has been pending (a time during which the Plaintiff had made almost no effort to prosecute this action), it is unclear if Defendant himself was aware of Plaintiff’s “good faith” efforts to obtain answers to its interrogatory. Here, the extreme penalty of striking Defendant’s Answer is not warranted (see Duria v. City of New York, 127 AD2d 459 [1st Dept 1987] [Striking the defendant's answer is not the appropriate remedy where its failure to provide disclosure was not willful or in bad faith]; see also Perez v. Tedesco, 214 AD3d 1010 [2d Dept 2023] [Striking the defendant's answer is not the appropriate remedy where the plaintiff failed to establish that his failure to provide disclosure was willful]). Plaintiff has also asked this Court to enter a default judgment against the Defendant. “3. (i) When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence…. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant’s place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence.” (CPLR 3215 [g] [3] [i]). Here Plaintiff failed to prove that it has served notice of its intent to move for a default judgment. Accordingly, Plaintiff’s motion for a default judgment is denied for failing to comply with the applicable notice requirement (CPLR 3215 [g] [3] [i]). In addition, Defendant’s counsel represented that he would move to withdraw as Defendant’s attorney when he appeared on May 9, 2023. However, Defendant’s counsel has failed to bring such a motion and failed to appear on June 13, 2023. In this case, it does not appear that continued representation of the Defendant by his present counsel is in Defendant’s best interest (22 NYCRR 604.1 [6]). III. Order Accordingly, it is ORDERED that the branch of Plaintiff’s motion to strike Defendant’s Answer is DENIED; and it is further ORDERED that the branch of Plaintiff’s motion for default judgment against Defendant is DENIED; and it is ORDERED that Roman and Associates is a hereby removed as counsel for Defendant; and it is further ORDERED that the part clerk is directed to put this matter on the Part 11C calendar on December 14, 2023, at 9:30 a.m. and to notify Plaintiff’s counsel and the now pro se Defendant of the next court date. This constitutes the decision and order of this Court. Dated: October 5, 2023
