Bangladesh Bank v Rizal Commercial Banking Corp. 2025 NY Slip Op 30944(U) March 22, 2025 Supreme Court, New York County Docket Number: Index No. 652051/2020 Judge: Andrea Masley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 03/24/2025 09: 19 AM] INDEX NO. 652051/2020 NYSCEF DOC. NO. 531 RECEIVED NYSCEF: 03/22/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 ----------------------------------------------------------------------------------- X
BANGLADESH BANK, INDEX NO. 652051/2020
Plaintiff, MOTION DATE - V - MOTION SEQ. NO. 025 RIZAL COMMERCIAL BANKING CORPORATION, MAIA SANTOS DEGUITO, ANGELA RUTH TORRES, LORENZO V. TAN, RAUL VICTOR B. TAN, ISMAEL S. DECISION+ ORDER ON REYES, BRIGITTE R. CAPINA, NESTOR 0. PINEDA, MOTION ROMUALDO S. AGARRADO, PHILREM SERVICE CORP., SALUD BAUTISTA, MICHAEL BAUTISTA, CENTURYTEX TRADING, WILLIAM SO GO, EASTERN HAWAII LEISURE COMPANY, LTD., KAM SIN WONG, WEIKANG XU, DING ZHIZE, GAO SHUHUA, and JOHN DOES,
Defendants. ----------------------------------------------------------------------------------- X
HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 025) 484,485,486, 487, 488,489,490,491,492,493,494,495,496 were read on this motion to/for JUDGMENT - DEFAULT
In motion sequence number 025, plaintiff Bangladesh Bank (Bank) moves
pursuant to CPLR 3215 for a default judgment against defendants Philrem Service
Corp. (Philrem), Michael Bautista, Salud Bautista, Maia Santos Deguito, and Angela
Ruth Torres (collectively, defaulting defendants) based on their failure to answer the
complaint.
Discussion
"On a motion for a default judgment under CPLR 3215 based upon a failure to answer the complaint, a plaintiff demonstrates entitlement to a default judgment against a defendant by submitting: (1) proof of service of the summons and complaint; (2) proof of the facts constituting its claim; and (3) proof of the defendant's default in answering or appearing." (Medina v Sheng Hui Realty LLC, 2018 NY Misc LEXIS 1789, *6-7, 2018 WL 2136441, *6-7 [Sup Ct, NY County 2018] [citations omitted].) 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 1 of 6 Motion No. 025
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Michael Bautista, Deguito, and Philrem
Michael Bautista, Deguito, and Philrem were served in accordance with the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 (1969) (Hague Convention)
through their counsel in the Republic of the Philippines (the Philippines). (NYSCEF
362, proof of service at 10-11/14 [service on Michael Bautista on August 2, 2023];
NYSCEF 363, proof of service at 10-11/13 [service on Philrem on August 2, 2023];
NYSCEF 375, proof of service at 10-11/15 [service on Deguito on August 3, 2023].)
The completed certificates of service filed by the Bank constitute "prima facie evidence
that the Central Authority's service on [these] foreign defendants was made in
compliance with the convention." (Unite National Retirement Fund v Ariela, Inc., 643 F
Supp 2d 328, 334 [SD NY 2008] [citation omitted].) As to Michael Bautista and Deguito,
however, the Bank failed to file affidavits of nonmilitary service. (See 50 USC§ 3931;
Unitrin Advantage Ins. Co. v 21st Century Pharm., 158 AD3d 450,451 [1st Dept 2018]
["Plaintiff established its entitlement to a default judgment against the defaulting
defendants ... except for defendant Ania Pierriseme, for whom no affidavit of nonmilitary
service appears in the record" (citations omitted)].)
Further, the court notes that
"[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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." (CPLR 3215 [c].)
"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 .... Notwithstanding, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 2 of 6 Motion No. 025
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complaint should not be dismissed." (Wells Fargo Bank, N.A. v Martinez, 181 AD3d 470, 471 [1st Dept 2020] [citation omitted].)
Michael Bautista and Philrem defaulted on September 2, 2023, by not answering
the complaint within 30 days of service. ( See CPLR 3012 [c]; CPLR 313; NYSCEF 487,
Loffler1 aff ,i 14.) Similarly, Deguito defaulted on September 3, 2023. (See CPLR 3012
[c]; CPLR 313; NYSCEF 487, Loffler aff ,I 14.) This motion was filed on October 16,
2024, more than a year following the defaults. ( See NYSCEF 484, Notice of Motion.)
Accordingly, on its face, this motion is untimely as against Michael Bautista, Deguito,
and Philrem. The Bank may supplement its motion to clarify whether the late filing of
this default motion against Michael Bautista, Deguito, and Philrem is excusable.
Salud Bautista and Torres
The court next determines whether the remaining defaulting defendants - Salud
Bautista and Torres - were properly served. Although the Bank maintains that Salud
Bautista was served in accordance with the Hague Convention, the certificate of service
states that service on him was not made. (NYSCEF 364, proof of service at 10/10.)
Prior to this default motion, the Bank moved to extend its time to serve and for
alternative service. This court granted the application and extended the Bank's time to
serve until October 6, 2023, authorizing alternative service "through (i) [defendants']
attorneys in pending criminal actions in the Philippines if counsel agree to accept
service; (ii) or by local publications in the Philippines if counsel refuses; and (iii) by e-
mail, Facebook, Linkedln, Twitter, and/or other similar social media communication
platform if known." (NYSCEF 351, July 18, 2023 Order at 2 [mot. seq. no. 020].)
1 Jesse Ryan Loffler is the Bank's counsel. (NYSCEF 487, Loffler aff ,i 1.) 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 3 of 6 Motion No. 025
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The Bank's counsel avers that it attempted service through Salud Bautista and
Torres's counsel in the Philippines, but none agreed to accept. (NYSCEF 487, Loffler
aff ,T 5.) The Bank submits proof of service by publication in English in two newspapers
- Philippine Daily Inquirer on August 19, 26, 31, and September 8, 2023 (NYSCEF 489,
Mendoza 2 aff), and Manila Bulletin on August 10, 17, 24, and 31, 2023. (NYSCEF 490,
Bulaong 3 aff.)
It is mandated that "[t]he first publication of the summons shall be made within
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Bangladesh Bank v Rizal Commercial Banking Corp. 2025 NY Slip Op 30944(U) March 22, 2025 Supreme Court, New York County Docket Number: Index No. 652051/2020 Judge: Andrea Masley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 03/24/2025 09: 19 AM] INDEX NO. 652051/2020 NYSCEF DOC. NO. 531 RECEIVED NYSCEF: 03/22/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 ----------------------------------------------------------------------------------- X
BANGLADESH BANK, INDEX NO. 652051/2020
Plaintiff, MOTION DATE - V - MOTION SEQ. NO. 025 RIZAL COMMERCIAL BANKING CORPORATION, MAIA SANTOS DEGUITO, ANGELA RUTH TORRES, LORENZO V. TAN, RAUL VICTOR B. TAN, ISMAEL S. DECISION+ ORDER ON REYES, BRIGITTE R. CAPINA, NESTOR 0. PINEDA, MOTION ROMUALDO S. AGARRADO, PHILREM SERVICE CORP., SALUD BAUTISTA, MICHAEL BAUTISTA, CENTURYTEX TRADING, WILLIAM SO GO, EASTERN HAWAII LEISURE COMPANY, LTD., KAM SIN WONG, WEIKANG XU, DING ZHIZE, GAO SHUHUA, and JOHN DOES,
Defendants. ----------------------------------------------------------------------------------- X
HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 025) 484,485,486, 487, 488,489,490,491,492,493,494,495,496 were read on this motion to/for JUDGMENT - DEFAULT
In motion sequence number 025, plaintiff Bangladesh Bank (Bank) moves
pursuant to CPLR 3215 for a default judgment against defendants Philrem Service
Corp. (Philrem), Michael Bautista, Salud Bautista, Maia Santos Deguito, and Angela
Ruth Torres (collectively, defaulting defendants) based on their failure to answer the
complaint.
Discussion
"On a motion for a default judgment under CPLR 3215 based upon a failure to answer the complaint, a plaintiff demonstrates entitlement to a default judgment against a defendant by submitting: (1) proof of service of the summons and complaint; (2) proof of the facts constituting its claim; and (3) proof of the defendant's default in answering or appearing." (Medina v Sheng Hui Realty LLC, 2018 NY Misc LEXIS 1789, *6-7, 2018 WL 2136441, *6-7 [Sup Ct, NY County 2018] [citations omitted].) 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 1 of 6 Motion No. 025
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Michael Bautista, Deguito, and Philrem
Michael Bautista, Deguito, and Philrem were served in accordance with the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 (1969) (Hague Convention)
through their counsel in the Republic of the Philippines (the Philippines). (NYSCEF
362, proof of service at 10-11/14 [service on Michael Bautista on August 2, 2023];
NYSCEF 363, proof of service at 10-11/13 [service on Philrem on August 2, 2023];
NYSCEF 375, proof of service at 10-11/15 [service on Deguito on August 3, 2023].)
The completed certificates of service filed by the Bank constitute "prima facie evidence
that the Central Authority's service on [these] foreign defendants was made in
compliance with the convention." (Unite National Retirement Fund v Ariela, Inc., 643 F
Supp 2d 328, 334 [SD NY 2008] [citation omitted].) As to Michael Bautista and Deguito,
however, the Bank failed to file affidavits of nonmilitary service. (See 50 USC§ 3931;
Unitrin Advantage Ins. Co. v 21st Century Pharm., 158 AD3d 450,451 [1st Dept 2018]
["Plaintiff established its entitlement to a default judgment against the defaulting
defendants ... except for defendant Ania Pierriseme, for whom no affidavit of nonmilitary
service appears in the record" (citations omitted)].)
Further, the court notes that
"[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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." (CPLR 3215 [c].)
"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 .... Notwithstanding, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 2 of 6 Motion No. 025
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complaint should not be dismissed." (Wells Fargo Bank, N.A. v Martinez, 181 AD3d 470, 471 [1st Dept 2020] [citation omitted].)
Michael Bautista and Philrem defaulted on September 2, 2023, by not answering
the complaint within 30 days of service. ( See CPLR 3012 [c]; CPLR 313; NYSCEF 487,
Loffler1 aff ,i 14.) Similarly, Deguito defaulted on September 3, 2023. (See CPLR 3012
[c]; CPLR 313; NYSCEF 487, Loffler aff ,I 14.) This motion was filed on October 16,
2024, more than a year following the defaults. ( See NYSCEF 484, Notice of Motion.)
Accordingly, on its face, this motion is untimely as against Michael Bautista, Deguito,
and Philrem. The Bank may supplement its motion to clarify whether the late filing of
this default motion against Michael Bautista, Deguito, and Philrem is excusable.
Salud Bautista and Torres
The court next determines whether the remaining defaulting defendants - Salud
Bautista and Torres - were properly served. Although the Bank maintains that Salud
Bautista was served in accordance with the Hague Convention, the certificate of service
states that service on him was not made. (NYSCEF 364, proof of service at 10/10.)
Prior to this default motion, the Bank moved to extend its time to serve and for
alternative service. This court granted the application and extended the Bank's time to
serve until October 6, 2023, authorizing alternative service "through (i) [defendants']
attorneys in pending criminal actions in the Philippines if counsel agree to accept
service; (ii) or by local publications in the Philippines if counsel refuses; and (iii) by e-
mail, Facebook, Linkedln, Twitter, and/or other similar social media communication
platform if known." (NYSCEF 351, July 18, 2023 Order at 2 [mot. seq. no. 020].)
1 Jesse Ryan Loffler is the Bank's counsel. (NYSCEF 487, Loffler aff ,i 1.) 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 3 of 6 Motion No. 025
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The Bank's counsel avers that it attempted service through Salud Bautista and
Torres's counsel in the Philippines, but none agreed to accept. (NYSCEF 487, Loffler
aff ,T 5.) The Bank submits proof of service by publication in English in two newspapers
- Philippine Daily Inquirer on August 19, 26, 31, and September 8, 2023 (NYSCEF 489,
Mendoza 2 aff), and Manila Bulletin on August 10, 17, 24, and 31, 2023. (NYSCEF 490,
Bulaong 3 aff.)
It is mandated that "[t]he first publication of the summons shall be made within
thirty days after the order [for alternative service] is granted" (CPLR 316 [c]), here,
within 30 days from July 18, 2023. The thirty-day period expired on August 17, 2023.
The first publication in Philippine Daily Inquirer was made two days late, on August 19,
2023. This failure to comply with the 30-day requirement of CPLR 316 (c) is a
jurisdictional defect. (See Matter of Kaila B. v Christopher M. B., 64 AD3d 647, 649 [2d
Dept 2009] ["failure to comply with the statutory requirements regarding the manner or
time of publication has been held to be a jurisdictional defect" (citation omitted)];
Citimortgage, Inc. v Haggerty, 2018 NY Slip Op 33358[U], *7 [Sup Ct, Suffolk County
2018] [same]; David D. Siegel & Patrick M. Connors, New York Practice§ 107 [6th ed,
Dec. 2024 update] ["First publication of the summons must be made within 30 days after
the order for service by publication is granted. This is strict. It has been held that even a
short delay will void the service" (citation omitted)].) Accordingly, the Bank failed to
properly effectuate service by publication.
2 Adela Garsalia Mendoza is the Sales Director -Classified Advertising with the Philippine Daily Inquirer, Inc. (NYSCEF 489 Mendoza aff.) 3 Ruben Yniguez Bulaong is the Senior Assistant Vice President - Advertising
Department with Manila Bulletin. (NYSCEF 490, Bulaong aff.) 652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 4 of 6 Motion No. 025
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Further, the court ordered that in addition to service by publication, service shall
be made "by e-mail, Facebook, Linkedln, Twitter, and/or other similar social media
communication platform if known." (NYSCEF 351, July 18, 2023 Order at 2 [mot. seq.
no. 020].) The Bank, however, submits no proof of service through social media
communication platforms or, alternatively, no affidavit explaining that no known
platforms exist as to Salud Bautista and Torres. Absent proof of compliance with
service requirements set forth in this court's July 18, 2023 order, default judgment
cannot be granted as to Salud Bautista and Torres. (See e.g. Feinstein v Bergner, 48
NY2d 234, 241 [1979] [finding service ineffective where plaintiff failed to "comply with
the specific mandates" of CPLR 308 [4].) Moreover, the Bank fails to submit affidavits
of nonmilitary service for Salud Bautista and Torres. (See 50 USC§ 3931; Unitrin
Advantage Ins. Co., 158 AD3d at 451.)
The court grants, nune pro tune, the Bank a 60-day extension from the date of
this order to serve Salud Bautista and Torres as specified infra.
Accordingly, it is
ORDERED that this motion is denied without prejudice; and it is further
ORDERED that Bangladesh Bank's time is extended, nune pro tune, 60 days
from the date of this order to serve Salud Bautista and Angela Ruth Torres; and it is
further
ORDERED that Bangladesh Bank may serve Salud Bautista and Angela Ruth
Torres (i) by publication as follows: summons shall be published together with the notice
to these defendant, a brief statement of the nature of the action and the relief sought,
and the sum of money for which judgment may be taken in case of default in two
652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 5 of 6 Motion No. 025
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English language newspapers -Philippine Daily Inquirer and Manila Bulletin, once in
each of four successive weeks, first publication to be made within 30 days of the date of
this interim order and (ii) by e-mail, Facebook, Linkedln, Twitter, and/or other similar
social media communication platform if known.
3/22/2025 DATE ANDREA MASLEY, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
652051/2020 BANGLADESH BANK vs. RIZAL COMMERCIAL BANKING Page 6 of 6 Motion No. 025
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