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  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
  • American Express National Bank v. Lesley Potts AKA LESLEY A POTTSOther Matters - Consumer Credit (Card) Original Creditor Plaintiff document preview
						
                                

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FILED: GREENE COUNTY CLERK 07/27/2022 03:57 PM INDEX NO. EF2020-783 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF GREENE ---------------------------------------------------------------------------X AMERICAN EXPRESS NATIONAL BANK, Plaintiff, DECISION/ORDER -against- Index No. EF2020-783 Richard Mott, J.S.C. LESLEY POTTS AKA LESLEY A POTTS, Defendant. -----------------------------------------------------------------------------X Motion Return Date: May 25, 2022 APPEARANCES: Plaintiff: Stephanie Maida, Esq. Zwicker & Associates, P.C. 100 Corporate Woods, Suite 230 Rochester, NY 14623 Defendant: No appearance Mott, J. Plaintiff moves for a default judgment in this action to collect a credit card debt. Background This action commenced on December 2, 2020. Defendant was served personally, with the summons and complaint on December 16, 2020 and has failed to answer or appear. Plaintiff filed the instant motion on April 22, 2022. The complaint alleges that Defendant owes approximately $11,114,97 on one credit card account with Plaintiff and $29,552.57 on a 2nd account. Party Contentions Plaintiff acknowledges it delayed in moving for a default judgment for more than 1 year following Defendants default. It submits, via its memorandum of law, that ongoing 1 of 4 FILED: GREENE COUNTY CLERK 07/27/2022 03:57 PM INDEX NO. EF2020-783 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/27/2022 negotiations, which included 249 telephone calls, constitutes good cause for such delay. Further, it avers that the enactment of a 3-year statute of limitations which took effect on April 7, 2022 regarding credit card collections, would preclude a refiling of this otherwise meritorious action.1 In addition, it refers generally to staffing issues caused by the COVID pandemic. It submits as proof of its claim affidavit of Assistant Custodian of Records, William A. McCarter, as to the amount due, attaching copies of credit card statements,2 credit card agreements and proof of the additional mailing pursuant to CPLR § 3215(g), on January 27, 2021. Discussion A default judgment requires proof of service of the summons and complaint, the facts constituting the claim, the defaulting defendant's failure to answer or appear, Bank of Am., N.A. v Agarwal, 150 AD3d 651 [2d Dept 2017] and proof of additional notice pursuant to CPLR § 3215(g)(3)(i). Further, CPLR § 3215(c) provides that where: “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.” To avoid dismissal in such circumstances, a plaintiff "must demonstrate a reasonable excuse for the delay” in addition to a meritorious cause of action. Bank of Am., N.A. v Rahl, 178 AD3d 1293, 1294 [3d Dept. 2019]. “The determination of whether an excuse is reasonable…is committed to the sound discretion of the motion court.” Bank of Am., N.A. v Santos, 175 AD3d 449, 450 [2d Dept 2019] (internal citations omitted). 1 CPLR § 214-I. 2 The affidavit as to the second account states that it was formerly numbered the same as the 1 st. This assertion is unexplained. As to Acct. 1004, statements dated in August and December 2019 are submitted. As to Acct. 2002, statements from September 2019 to February 2020 are submitted. 2 2 of 4 FILED: GREENE COUNTY CLERK 07/27/2022 03:57 PM INDEX NO. EF2020-783 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/27/2022 Here, Plaintiff moved for a default judgment more than 1 year after Defendant’s February 3, 2021 default date, which expired before the enactment of the 3-year statute.3 Further, its conclusory statement that negotiations caused/justified the delay, which lacks detail as to the substance of same, an affidavit from an individual with knowledge of the substance of the negotiations or mention of a timeline is patently insufficient to justify said delay. Bank of Am., N.A. v Santos, 175 AD3d 449; cf., Iorizzo v Mattikow, 25 AD3d 762, 763- 64 [2d Dept 2006] (prolonged delay excused where, inter alia, plaintiffs presented evidence of a prolonged and tortured history of settlement discussions, allegedly hinging on plaintiffs' forbearance from entering a judgment). Plaintiff’s general reliance upon the COVID pandemic is unsubstantiated by specific facts in circumstances where 1 of Plaintiff’s affidavit of facts is dated well within the 1-year limitations period. Moreover, Plaintiff’s reliance on Brown v Rosedale Nurseries, Inc., 259 AD2d 256, 257 [1st Dept 1999] is unavailing, as the plaintiff there had proceeded within 1 year of the defendant’s default by order to show cause, notwithstanding the judge did not sign same. Accordingly, the motion is denied and the action is dismissed. This constitutes the Decision and Order of this Court. The Court is E-filing this Decision and Order, but that does not relieve Plaintiff from compliance with the provisions of CPLR §2220 with regard to notice of entry thereof. Dated: Hudson, New York July 25, 2022 __________________________________ RICHARD MOTT, J.S.C. 3 A defendant defaults when s/he fails to answer within 20 days of personal service of the summons and complaint. CPLR § 320(a). 3 3 of 4 FILED: GREENE COUNTY CLERK 07/27/2022 03:57 PM INDEX NO. EF2020-783 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/27/2022 Papers Considered: 1. Notice of Motion, Affirmation and Memorandum of Law of Stephanie Maida, Esq., dated April 21, 2022 with Exhibits A-F and Affidavits of William A. McCarter, for account ending in (1004) with Exhibits A-B, dated March 2, 2022 and for account ending in (2002) with Exhibits A-C, dated December 8, 2021. 4 4 of 4