Wells Fargo Bank, N.A. v. Keller

2024 NY Slip Op 33608(U)

• Court: New York Supreme Court, New York County
• Decided: October 11, 2024
• Docket: Index No. 152883/2022
• Status: Unpublished

Opinion

Wells Fargo Bank, N.A. v Keller 2024 NY Slip Op 33608(U) October 11, 2024 Supreme Court, New York County Docket Number: Index No. 152883/2022 Judge: Nicholas W. Moyne 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 10/11/2024 04:40 PM INDEX NO. 152883/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/11/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NICHOLAS W. MOYNE PART 41M Justice -------------------~-----------X INDEX NO. 152883/2022 WELLS FARGO BANK, N.A. MOTION DATE 03/27/2024 Plaintiff, MOTION SEQ. NO. ----=0=-=0....:..1_ _ -v- OWEN KELLER, DECISION + ORDER ON MOTION Defendant. --------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11,12,13,14 were read on this motion to/for JUDGMENT - DEFAULT

Upon the foregoing documents, it is

Plaintiff, Wells Fargo Bank, N.A., commenced the underlying action to recover for

amounts owed pursuant to charges on a credit card which remain unpaid, alleging claims for

breach of agreement, account stated and quantum meruit. Plaintiff Wells Fargo now moves for

an order, pursuant to CPLR § 3215, directing entry of a default judgment against defendant,

Owen Keller, in the amount of $20,669.81.

On June 10, 2022, plaintiff, in accordance with the method of service proscribed by

CPLR § 308, served the defendant with the summons and complaint for this action (NYSCEF

Doc. No. 2). The applicable time period in which defendant ought to have answered or otherwise

appeared has passed, and the defendant has failed to do so. However, on March 27, 2024, after

the statutorily proscribed one-year period in which to file a motion for default had expired, Wells

Fargo filed its application seeking entry of a default judgment against defendant (see CPLR §

3215 [a]).

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CPLR § 3125 (c) provides that if a 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, unless sufficient cause is shownwhy the complaint should not be

dismissed. The language of CPLR § 3215 (c) requiring dismissal is not discretionary, but

mandatory, with the statute excepting cases where sufficient cause has been shown (Deutsche

Bank Natl. Tr. Co. v Cruz, 173 AD3d 610, 610 [l st Dept 2019]). Therefore, to establish

sufficient cause, a plaintiff must both proffer a reasonable excuse for the delay in timely moving

for a default judgment and demonstrate that it has a potentially meritorious cause of action

(HSBC Bank USA, NA. v Slone, 174 AD3d 866,867 [2d Dept 2019]).

Plaintiff asserts that its delay in seeking a default judgment was the result of a procedural

and/orlawofficefailure(seeHertz Vehicles, LLCvMol/o, 171 AD3d651 [lstDept2019] [A

reasonable excuse for delay may include those resulting from law office failure]; compare U.S.

Bank, Nat. Ass'n v Dorve/us, 140 AD3d 850,852 [2d Dept 2016]). While a court has the

discretion to accept law office failure as a reasonable excuse, such excuse must be supported by

detailed allegations of fact explaining the failure (Ibrahim v Nab/us Sweets Corp., 161 AD3d

961,963 [2d Dept 2018]; CEO Bus. Brokers, Inc. v Alqabi/i, 105 AD3d 989,990 [2d Dept 2013]

[allegations of law office failure may not be vague, conclusory, or unsubstantiated]).

The affirmation of plaintiff's counsel includes allegations that a prior suit to recover the

amount owed was filed in the New York Civil Court; in which service of that complaint was

attempted at the given address for defendant, but was unsuccessful as the address was a PO Box

(see NYSCEF Doc. No. 10). Plaintiff asserts that although a discontinuance without prejudice

was sent to the Court, on or about April l, 2022, due to the paper filings in the Civil Court

action, plaintiff never received confirmation of the discontinuance, and as such, would not issue

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an affidavit of judgment for this action. Plaintiff contends that once it was satisfied of the

discontinuance of the first Civil Court action, thereafter on or around March 21, 2024, it issued

an affidavit of facts for this action. Considering, plaintiff has offered a reasonable excuse for the

delay, which resulted from a law office failure (Park v Kim, 205 AD3d 429,429 [1st Dept 2022];

compare Zayas v Monte/fore Med. Ctr., 188 AD3d 551,552 [1st Dept 2020]).

Additionally, plaintiff has demonstrated meritorious causes of action, offering an

affidavit of facts from a Loan Workout Specialist of Wells Fargo and additional supporting

documentation to demonstrate its claims (see Citimortgage, Inc. v Sahai, 172 AD3d 552 [1st

Dept 2019]; see also NYSCEF Doc. No. 13). Additionally, as required by CPLR § 3215 (t),

plaintiff has provided proof of service of the summons and complaint, the facts supporting each

of its claims, the default, and the amount due, through the verified complaint and the affidavit of

merit (Bigio v Gooding, 213 AD3d 480,481 [1st Dept 2023] ["To demonstrate facts constituting

the claim, the movant need only proffer proof sufficient to enable a court to determine that a

viable cause of action exists"]). As plaintiff has demonstrated compliance with the statutory

requirements of CPLR § 3215 et. seq., the motion for entry of a default judgment is granted.

Accordingly, it is hereby

ORDERED that the motion by plaintiff, Wells Fargo Bank, N.A., is GRANTED; and it is

further

ADJUDGED and ORDERED that plaintiff, Wells Fargo Bank, N.A., having a legal

representative with an address at Attn: David Sussman, Esq., Tenaglia & Hunt, P.A., 5 Penn Plaza,

23rd Floor, New York, NY 10001, is granted a judgment against defendant, Owen Keller, having

a last known address at 59 East 73 rd Street, Apt JF, New York, NY 10021, in the amount of

$20,669.81; and it is further

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ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff,

Wells Fargo Bank, N.A., and against defendant, Owen Keller, in the amount of $20,669.81,

together with costs and disbursements in the amount of$ _______ as taxed by the Clerk

upon the submission of an appropriate bill of costs, for the total judgment amount of $

_ _ _ _ __, and that the plaintiff have execution thereof.

This constitutes the decision and order of the court.

10/11/2024 DATE NICHOLAS W. MOYNE, J.S.C.

DATE CLERK

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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