| Capital One Bank (USA), N.A. v Morales |
| 2019 NY Slip Op 50397(U) [63 Misc 3d 1206(A)] |
| Decided on March 22, 2019 |
| City Court Of Mount Vernon |
| Seiden, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Capital One Bank
(USA), N.A., Plaintiff,
against German M. Morales, Defendant. |
In this action to recover the balance due pursuant to a credit card agreement, plaintiff moves for an order granting leave to file the affidavit of service of the summons and complaint in the instant matter nunc pro tunc.
The plaintiff allegedly extended credit to defendant pursuant to a credit card agreement. The defendant allegedly owes a balance of $1,292.10. Plaintiff commenced the instant action on March 15, 2018. Subsequently, plaintiff served the summons and complaint on defendant by delivering it to a person of suitable age and discretion pursuant to CPLR § 308(2) on April 7, 2018, with the requisite mailing completed on April 12, 2018. The affidavit of service, however, was not filed with the Court within the requisite twenty (20) day statutory period. Plaintiff's counsel alleges that they were not aware that it had not been filed until they attempted to obtain a default judgment in January 2019, well after the expiration of the twenty (20) day statutory period, when the proposed judgment was returned by the Court with a notification regarding the late filing of the affidavit of service. Plaintiff seeks an order from this Court permitting the plaintiff to file the affidavit service of the summons and complaint nunc pro tunc.
The failure to file a timely proof of service is a mere irregularity without jurisdictional implications that may be cured by an order pursuant to CPLR §§ 2001 and 2004. Weininger v. Sassower, 204 AD2d 715 (2nd Dept. 1994); Rosato v. Ricciardi, 174 AD2d 937 (3rd Dept. 1991). However, a court cannot invoke the device of nunc pro tunc to effectively grant a default judgment retroactively. Id.
In the case at bar, granting plaintiff permission to file the affidavit of service nunc pro tunc as of May 2, 2018 would be in effect granting a default judgment retroactively as defendant's time to answer would have expired on June 13, 2018. See CPLR § 308(2)(service is complete ten (10) days after the filing of the proof of service). As such, the Court grants plaintiff's motion for leave to file its affidavit of service, however, the Court deems it timely filed as of the date of this decision. The defendant has thirty (30) days from the date of this decision within which to serve his answer.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion to File Affidavit of Service Nunc Pro Tunc and Enter Judgment dated February 12, 2019; Exhibits A-C.