The opinion
Abramov v Bee Bee Car Serv. Inc.
2024 NY Slip Op 34482(U)
December 23, 2024
Supreme Court, Kings County
Docket Number: Index No. 502146/2019
Judge: Carolyn Walker-Diallo
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publication.
FILED: KINGS COUNTY CLERK 12/24/2024 10:31 AM INDEX NO. 502146/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/24/2024
At an IAS Term, Part DJMP2, of the
Supreme Court of the State of New
PRESENT: York, held in and for the County of
Kings, at the Courthouse at 320 Jay
Street, Brooklyn, New York on the 23rd
HON. CAROLYN WALKER-DIALLO, J.S.C. day of December 2024.
--------------------------------------------------------------- X
GLORIA ABRAMOV,
Plaintiff, Index No.: 502146/2019
- against -
DECISION/ORDER
BEE BEE CAR SERVICE INC., et al.,
Defendants.
--------------------------------------------------------------- X
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion, Affirmation, Exhibits NYSCEF Doc. Nos. 12-21
Affirmation in Opposition NYSCEF Doc. No. 25
Papers considered: Motion Sequence 2
INTRODUCTION
Plaintiff Gloria Abramov (“Plaintiff”) moves for an order pursuant to: (i) CPLR 3215,
granting default judgments against Defendants Bee Bee Car Service Inc. (“Defendant Bee Bee”),
John Doe 1 (“Defendant Doe 1”) and John Doe 2 (“Defendant Doe 2”); and (ii) CPLR 3025 (b),
granting leave to file and serve an amended summons and verified complaint adding Irebowale O.
Talabi as a Defendant. Upon the foregoing papers and for the reasons set forth below, Plaintiff’s
motion is DENIED, and this action is DISMISSED.
FACTUAL AND PROCEDURAL HISTORY
This personal injury action was commenced on January 30, 2019, with the filing of a
Summons and Verified Complaint. See Summons and Verified Complaint, NYSCEF Doc. No. 1.
Plaintiff seeks to recover for injuries alleged to have occurred while in a taxi dispatched by
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Defendant Bee Bee and operated by Irebowale O. Talabi on October 4, 2017, at approximately
7:00 a.m., near 1392 Broadway and Palmetto Street, Brooklyn, New York. See Affidavit of Gloria
Abramov in Support of Motion (“Abramov Aff. 1”), dated April 25, 2024, at ¶¶3-4, NYSCEF Doc.
No. 12 at 11. At this time, place and occurrence, the taxi was struck by an unknown vehicle and
the vehicle left the scene of the accident. See Affidavit of Merit of Gloria Abramov (“Abramov
Aff. 2”), dated April 25, 2024, at ¶¶4-5, NYSCEF Doc. No. 20. Service of the summons and
complaint is alleged to have been made on February 19, 2019, at Defendant Bee Bee’s place of
business at 663 Blake Avenue, Brooklyn, New York. See Affidavit of Service, NYSCEF Doc. No.
16.
After Defendant Bee Bee did not interpose an answer within the requisite timeframe,
Plaintiff moved for a default judgment on December 18, 2019. See Notice of Motion for Default
Judgment dated December 18, 2019, NYSCEF Doc. No. 3. By Order of the Honorable Richard J.
Montelione dated August 20, 2020, Plaintiff’s application for leave to serve supplemental papers
in the form of an Affidavit of Merit was granted. Additionally, Plaintiff was directed to provide
proof of service of the supplemental papers and the subject order on the adjournment date of the
motion. See Order of the Hon. Richard J. Montelione dated August 20, 2020, NYSCEF Doc. No.
5. Plaintiff failed to comply, and by Order of the Honorable Richard J. Montelione dated January
19, 2021, Plaintiff’s motion for default judgment was denied without prejudice to renew upon
filing the proper documents. See Order of the Hon. Richard J. Montelione dated January 19, 2021,
NYSCEF Doc. No. 7. A review of the record in this case indicates that neither order has been
served upon Defendant Bee Bee.
A status conference was held by the Court on March 28, 2024, as the case had been inactive
for over one year. See Status Conference Notice dated February 29, 2024, NYSCEF Doc. No. 8.
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Defendant Bee Bee appeared, and a briefing schedule for motion practice was ordered by the
Honorable Lawrence Knipel on April 1, 2024. See Order of the Hon. Lawrence Knipel dated April
1, 2024, NYSCEF Doc. No. 10. Plaintiff filed the instant motion for default judgment and for leave
to add Irebowale O. Talabi as a Defendant. Plaintiff also requested leave to serve an amended
summons and complaint. See Motion for Default Judgment dated April 26, 2024, NYSCEF Doc.
No. 12. Defendant Bee Bee filed opposition papers on October 1, 2024. See Affirmation in
Opposition dated October 1, 2024, NYSCEF Doc. No. 25. No reply papers have been submitted.
DISCUSSION
I. Plaintiff’s Motion for Default Judgment is DENIED.
CPLR 320 (a) gives a party personally served twenty (20) days after the date of service to
answer a summons and complaint. Failure to answer constitutes grounds for default under CPLR
3215 (a). After a defendant fails to answer, the plaintiff has one year to seek a default judgment
pursuant to CPLR 3215 (f). Failure to move for default within one year mandates the court to
dismiss the case as abandoned unless the plaintiff shows sufficient cause why the complaint should
not be dismissed. See CPLR 3215 (c). “The policy behind CPLR 3215 (c) is to prevent parties who
have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests
on stale claims.” Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307 (2d Dep’t 2011).
However, “[i]t is not necessary for a plaintiff to actually obtain a default judgment within
one year of the default in order to avoid dismissal pursuant to CPLR 3215 (c).” U.S. Bank N.A. v.
Dorestant, 131 A.D.3d 467, 469 (2d Dep’t 2015); see Aurora Loan Servs., LLC v. Gross, 139
A.D.3d 772, 774 (2d Dep’t 2016); see also Wells Fargo Bank, N.A. v. Daskal, 142 A.D.3d 1071,
1072-1073 (2d Dep’t 2016). Rather, “[a]s long as ‘proceedings’ are being taken, and these
proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not
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be subject to dismissal.” Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257 (1st Dep’t 1999); see
U.S. Bank, N.A. v. Duran, 174 A.D.3d 768, 770 (2d Dep’t 2019); Wells Fargo Bank, N.A. v. Lilley,
154 A.D.3d 795, 796 (2d Dep’t 2017); HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839
(2d Dep’t 2015). Further, “[f]ailure to take proceedings for entry of judgment may be excused ...
upon a showing of sufficient cause,” which requires the plaintiff to “demonstrate that it had a
reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it
has a potentially meritorious action.” Aurora Loan Servs., LLC v. Hiyo, 130 A.D.3d 763, 764 (2d
Dep’t 2015); see Wells Fargo Bank, N.A. v. Bonanno, 146 A.D.3d 844 (2d Dep’t 2017); HSBC
Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671 (2d Dep’t 2016); HSBC Bank USA, Nat. Ass'n v.
Hasis, 154 A.D.3d 832, 833-34 (2d Dep’t 2017).
In the instant action, personal service is alleged to have been effectuated on February 19,
2019, at Defendant Bee Bee’s place of business. See Affidavit of Service, NYSCEF Doc. No. 16.
Plaintiff initially filed the motion for default judgment on December 18, 2019, after Defendant
Bee Bee did not answer, well within the one year permitted. See Notice of Motion for Default
Judgment dated December 18, 2019, NYSCEF Doc. No. 3. However, Plaintiff’s papers were
deficient, as they were lacking an Affidavit of Merit. See Order of the Hon. Richard J. Montelione
dated August 20, 2020, NYSCEF Doc. No. 5. Even after being granted a lengthy adjournment to
supplement its papers, Plaintiff failed to do so. Accordingly, Plaintiff’s motion was denied without
prejudice to renew upon submission of the proper documents. See Order of the Hon. Richard J.
Montelione dated January 19, 2021, NYSCEF Doc. No. 7. There is no indication in the record or
in Plaintiff’s papers that any attempts were made by Plaintiff to further the proceedings during the
period between January 19, 2021 and April 26, 2024, the date that the instant motion was filed. In
fact, the only furtherance of this proceeding was a status conference scheduled by the Court in
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early 2024 due to case inactivity. See Status Conference Notice dated February 29, 2024, NYSCEF
Doc. No. 8.
On April 26, 2024, over three years later, Plaintiff moved to renew the motion for default
judgment by filing the instant motion. However, even now, Plaintiff’s motion papers do not
establish the default Plaintiff seeks. Plaintiff Abramov’s Affidavit of Support and nearly identical
Affidavit of Merit1 are devoid of merit. Not only are the affidavits largely identical, but they do
not address the lateness of the current motion. There is only a barebones mention of unavailability
when the prior motion was filed and adjourned for supplementary papers. Further, as will be
discussed below, the affidavits (and supporting affirmation) provide that Plaintiff was unaware of
the driver’s name at the time the action was filed and that Plaintiff’s attempts to obtain this
information from Defendant Bee Bee were unsuccessful. See generally, Affirmation of Naadiya
Yasin in Support of Motion (“Yasin Aff.”), dated April 25, 2024, NYSCEF Doc. No. 12 at 4,
Abramov Aff. 1, dated April 25, 2024, NYSCEF Doc. No. 12 at 11, and Abramov Aff. 2, dated
April 25, 2024, NYSCEF Doc. No. 20.
Specifically, the proffered affidavits provide: “[d]ue to my attorney not being able to get
in touch with me, this document was not timely filed,” presumably referring to the Affidavit of
Merit. The next paragraph of the Affidavit in Support only provides that the requested documents
were submitted, therefore entitling Plaintiff to a default judgment. Abramov Aff. 1, dated April
25, 2024, at ¶¶13-14, NYSCEF Doc. No. 12 at 13, and Abramov Aff. 2, dated April 25, 2024, at
¶14, NYSCEF Doc. No. 20. This is the entire extent of Plaintiff’s showing regarding Plaintiff’s
lateness. There is not a single reference in either affidavit of any reason for the years-long delay
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Upon a review of Plaintiff Abramov’s affidavits submitted in support of the motion, it is apparent that they are nearly
identical in most respects, apart from some minor language and informational changes. See Affidavit of Gloria
Abramov in Support of Motion, dated April 25, 2024, NYSCEF Doc. No. 12 at 11, and Affidavit of Merit of Gloria
Abramov, dated April 25, 2024, NYSCEF Doc. No. 20.
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in resubmitting the default motion, including but not limited to, any excuse claimed due to the
pendency of the COVID-19 pandemic. Plaintiff’s attorney affirmation in support does reference
an excuse, but an attorney affirmation is of no evidentiary value. See Zuckerman v. New York, 427
N.Y.S.2d 595, 598 (1980).
At this time, Plaintiff has had three opportunities to prove Plaintiff’s default, and has failed
to demonstrate entitlement under CPLR 3215, even five years after the action was initially
commenced. The affidavits submitted do not raise any explanations for the extensive delay in
resubmitting the motion for default judgment or requesting leave to amend the action. No cause,
let alone sufficient cause, is shown by Plaintiff that prevents Plaintiff’s complaint from being
dismissed. Plaintiff has simply not proffered any reasonable excuse for the lateness of the latest
motion or default judgment. Accordingly, the action must be dismissed pursuant to CPLR 3215
(c).
II. Plaintiff’s Motion for Leave to File and Serve an Amended Summons and Complaint is DENIED.
“CPLR 3025 (b) provides that ‘[a]ny motion to amend or supplement pleadings shall be
accompanied by the proposed amended or supplemental pleading clearly showing the changes or
additions to be made to the pleading.’” Scialdone v. Stepping Stones Assocs., L.P., 148 A.D.3d
950, 952 (2d Dep’t 2017). Here, Plaintiff does not attach any proposed amended or supplemental
pleadings to Plaintiff’s motion papers. This ground alone is sufficient for denial of the motion.
Notwithstanding, in considering the merits of the motion to add Irebowale O. Talabi, the
driver of the vehicle as a Defendant, the Court notes that Plaintiff asserts, in numerous affidavits
and affirmations submitted, including in the Verified Complaint itself, that Plaintiff was unaware
of the identity of the driver of the taxi when this action was commenced. Additionally, Plaintiff
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affirms that Defendant Bee Bee did not provide a response when asked for this information. See
Verified Complaint at ¶¶5, 8-10, NYSCEF Doc. No. 1, Abramov Aff. 1, dated April 25, 2024, at
¶¶9-10, NYSCEF Doc. No. 12 at 12, and Abramov Aff. 2, dated April 25, 2024, at ¶¶10-11,
NYSCEF Doc. No. 20, and Yasin Aff., dated April 25, 2024, at ¶¶10, 13, NYSCEF Doc. No. 12
at 6.
However, in opposition to the instant motion, Defendant Bee Bee submits discovery
requests and responses that were exchanged between the parties before the action was commenced,
as well as an affidavit from Jose Luna Espinal, President of Defendant Bee Bee, who prepared the
responses. See Pre-Action Discovery Exchanges and Affidavit of Jose Luna Espinal (“Luna
Espinal”) (“Luna Espinal Aff.”), dated September 30, 2024, annexed as Exhibits C and D to
Defendant Bee Bee’s Affirmation in Opposition, dated October 1, 2024, NYSCEF Doc. No. 25 at
14-26. In his affidavit, Luna Espinal provides that he was first contacted by Plaintiff’s attorneys
on or about November 3, 2017, by facsimile. See Id. at 15-17, 25. Luna Espinal further provides
that he responded on November 10, 2017, per the correspondence annexed, requesting additional
information to enable him to process Plaintiff’s request. See Id. at 18. On February 7, 2018,
Plaintiff responded with the information requested, and Luna Espinal provided the driver’s name
and insurance company on February 15, 2018. See Id. at 19-23. The Court notes that Plaintiff did
not appear on the return date of the motion, October 22, 2024, or thereafter, to request an additional
adjournment to submit additional papers. Moreover, Plaintiff did not submit an affirmation in
reply in response to this showing. Thus, while Plaintiff asserts that this amendment is necessary
because it was unaware of the identity of the driver of the vehicle in which Plaintiff was seated at
the time of the alleged accident until “recently,” this has been disproven by Defendant’s Bee Bee’s
showing in its opposition papers.
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Lastly, Plaintiff cites Buran v. Coupal, 638 N.Y.S.2d 405, 408 (1995), presumably for the
proposition that an amendment should be permitted when a mistake or excusable mistake has
prevented an additional party from being named in the action. See Yasin Aff., dated April 25, 2024,
at ¶13, NYSCEF Doc. No. 12 at 6. That is not the case here. Plaintiff specifically requested and
received the driver’s name before bringing this action and for whatever reason, this information
was not acted upon. Even now, years later, Plaintiff does not acknowledge possession of this
information, despite evidence to the contrary. Rather, Plaintiff’s papers inexplicably provide that
Defendant Bee Bee was uncooperative with providing the information. Accordingly, this prong of
Plaintiff’s motion must also be denied.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Default is DENIED in its entirety, and this
action is DISMISSED. Plaintiff is directed to serve this order with notice of its entry within twenty
(20) days.
This constitutes the decision and order of the Court.
ENTER:
Date: December 23, 2024 ____________________________
Hon. Carolyn Walker-Diallo, J.S.C.
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