Upon the foregoing papers, the decision and order of the court is as follows:

GISCHE J.:

This is an action by plaintiff, Amalgamated Bank of New York ("Amalgamated"), for breach of contact arising from a retail installment agreement with Major Dodge, inc. in connection with a car. Plaintiff seeks entry of a default judgment against defendants, Plaze Washington ("Plaze") and Lenwood Washington ("Lenwood").

The motion, which was served upon defendants, is unopposed and considered by the court to be on default. The underlying claim is that defendants defaulted in paying a loan for a car. Plaintiff claims that the loan was executed when defendants signed a retail installment contract with Major Dodge, Inc. Plaintiff asserts that Major Dodge assigned the loan to North Fork Bank, who further assigned the loan to Amalgamated.

Amalgamated has filed proof that the defendants were duly served with the summons and complaint. Diligent attempts were made to personally serve each of the defendants. Plaze and Lenwood were each served by plaintiff leaving the summons and complaint with a relative, a person of suitable age and discretion (CPLR §308[2]). Non-military affidavits were also submitted for each defendant. The additional notice requirements of §3215(g)(3)(i), were complied with since plaintiff served this motion more that 20 days prior to entry of default [*2]judgment. Despite such notice and additional notice, neither defendant has answered the complaint or appeared and this motion was submitted on default.

A default in answering the complaint is deemed to be an admission of all factual allegations contained in the complaint and all reasonable inferences that flow from them (Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]). Therefore, Amalgamated is entitled to the relief sought in its verified complaint, which is supported by the sworn affidavit of Vincent Zecca, Assistant Vice President for plaintiff, provided Amalgamated has otherwise set forth its prima facie case (Gagen v. Kipany Prods., 289 AD2d 844 [3rd Dept. 2001]).

The underlying action seeks a money judgment against defendants in the sum of $37,445.62 with interest from the date of the complaint along with costs and disbursements. Amalgamated has established the following facts:

On July 30, 1999, defendants executed a contract with Major Dodge Inc. for the purchase of a 1999 Dodge Durango. Subsequently, Major Dodge Inc. assigned the contract to North Fork Bank. The contract states that defendants made a down payment of $8,100.00 and the remaining $31,520.57 was to be loaned to defendants, who would make monthly installments to pay off the loan. North Fork Bank later assigned defendants' contract to Amalgamated. Plaintiffs asserts three causes of action against the defendants: (1) Plaintiff claims that defendants owe a balance of $20,574.21 plus interest at the rate of 12.25% from August 13, 2002 to date of complaint of $11,987.20 for a total of $32,561.41; (2) Plaintiffs claim defendants agreed to pay attorney fees in the amount of $4,884.21; (3) Plaintiffs claim that an account was stated showing a balance of $37,445.62.

This is plaintiff's third attempt at seeking a default judgment against defendants. The first attempt was made to enter judgment through the Clerk, September 27, 2007. The clerk rejected the judgment noting that plaintiff had failed to provide proof of the loan assignment from North Fork Bank to plaintiff and an affirmation stating the last statement of the loan had in fact, been mailed to the defendants.

Plaintiff's second attempt was via a motion made to this court almost three years later. Once again, Amalgamated was not successful in establishing a prima facie case against defendants because plaintiff did not prove the assignment from North Fork bank to plaintiff. The document provided by plaintiff was not directly referable to the loan in question. Moreover, the "contract" for the original loan was not with North Fork Bank, but with Major Dodge, Inc. and no copy of an assignment by Major Dodge, Inc. to North Fork Bank was provided to the Court. (Order, Gische J, 7/9/10) ("prior order") Also, the copy of the contract on which plaintiff relied was illegible and the material terms, including the interest rate provided therein, were not established.

The court denied the motion without prejudice with leave to renew within 90 days of the order. Plaintiff was ordered to explain why there was a three-year delay in seeking the default, the court reserved making any decision as to the issue of lateness under §3215(c).^[FN1]

This motion was filed on December 21, 2010, approximately two months past the 90 days to renew deadline imposed by the Court. Plaintiff's excuse for why it did not timely renew their motion is that they did not receive the decision in their office until October 22, 2010. They assert that there is no prejudice to defendants because they have been given additional [*3]opportunity to appear in court. The Court is not persuaded by this argument. As the moving party, plaintiff is expected to keep track of the motion and determine in a timely manner whether it has been decided. Apparently plaintiff waited more than 3 months to determine the status of their motion.

Even if the Court were persuaded to overlook the lateness of this motion, there are other problems with it. The summons and complaint were served three years ago. Additional notice, required under CPLR §3215(g)(3)(i), was mailed on December 17, 2010 to defendants' addresses that appear on the three-year-old summons. Plaintiff did not make any attempt to ascertain whether defendants are still living at the same addresses, three years later.

Plaintiffs have also not provided any details as to what payments if any were made by defendants under the contract. Plaintiff has not provided any information as to the current status of the vehicle. Typically, where a car secures a loan it may be repossessed and sold at auction, with proceeds applied to the outstanding balance of the loan.

The accounting record titled "North Fork Bank sale to Amalgamated Bank" shows defendant, Plaze as having a total funding amount of $29,909.53, which is inconsistent with the amount plaintiff is seeking in this motion.

Even if the court was to excuse the lateness and lack of information in this motion to renew, plaintiff has still not provided a reasonable excuse for the 3-year delay in seeking a default motion. Plaintiff states that after the Clerk of the Court rejected the judgment, plaintiff's attorneys made numerous requests to plaintiff for the missing documentation. The missing documents were in the possession of the plaintiff and it is plaintiff who failed to provide the documents to their attorneys within a year of the default. Under CPLR §3215(c), if 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. The Court has broad discretion to determine if the delay in requesting default judgment should be excused. Charles F. Winson Gems, Inc. v. D. Gumbiner, Inc., 85 AD2d 69, 71 (1st Dept. 1982). The success of this motion was in the hands of the plaintiff and it was plaintiff's failure to provide all necessary documents that led to a 3-year delay, therefore, the Court is not persuaded that the excuse provided is a sufficient cause.

Plaintiff's motion is untimely as to the 90-day renewal deadline imposed by the Court. Plaintiff's motion still does not provide all relevant information relating to this contract, the accounts presently due and/or what was done with the collateral. Plaintiff's motion raises questions as to the sufficiency of notice provided to defendants. Finally, plaintiff has failed to provide a sufficient cause for a three-year delay in seeking a default, as required under §3215(c). Based on the foregoing, plaintiff's motion is denied and the complaint is dismissed.

Conclusion

In accordance with the foregoing:

It is hereby

ORDERED that plaintiff's, Amalgamated Bank of New York, motion for entry of a default motion judgment against defendants, Plaze Washington and Lenwood Washington, is denied; and it is further

ORDERED that plaintiff's, Amalgamated Bank of New York, complaint is dismissed; and it is further

ORDERED that any requested relief not expressly addressed herein has nonetheless [*4]been considered by the Court and is hereby denied; and it is further

ORDERED that this constitutes the decision, order and Judgment of the court.

Dated:New York, New York

March 15, 2011

So Ordered:

___________________________

HON. JUDITH J. GISCHE, J.S.C.