Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1-2

Notice of Cross-Motion and Answering Affirmations 3

Reply Affidavits/ Affirmations 4

Amended Affirmations dated Sept. 24, 2025 5

Plaintiff filed the instant motion seeking leave to amend the Complaint. Defendant cross-moves seeking dismissal pursuant to CPLR 3211(a)(7). Argument was held before the undersigned, and the motions were marked submitted.

Plaintiff moves, pursuant to CPLR 3025(b), seeking leave to amend the Complaint, to reflect the proper parties to a merger. While the Plaintiff states that an incorrect party was listed in paragraph 6 of the Complaint, and what paragraph 6 should have read, it does not offer any proposed amended pleading, as required by CPLR 3025. In support of its motion, Plaintiff annexes the Certificate of Merger between Daimler Trust and the Plaintiff. Pursuant to the terms of the merger, which became effective on January 31, 2023, Daimler Trust and the Plaintiff merged, with the Plaintiff being the "surviving statutory trust." According to the certification of Delaware's Secretary of State, prior to the merger both Daimler Trust and the Plaintiff were two separate statutory trusts organized under the laws of Delaware.

Defendant opposed the Plaintiff's motion to amend, stating Plaintiff's attorney failed to submit (i) affirmations that complied with CPLR 2106 and (ii) the proposed amended pleadings as required by CPLR 3025(b). In the interests of justice and in accordance with CPLR 2001, the Court granted leave for the Plaintiff to submit affirmations that complied with the statutory language of CPLR 2106. The Plaintiff complied with the Court's directive.

Defendant moved for dismissal under CPLR 3211(a)(7), claiming that the Plaintiff failed to comply with the pleading requirements of CPLR 3016(j). Specifically, Defendant states that the Plaintiff failed to allege the proper original creditor, as required under CPLR 3016(j)(7)(B). Defendant argues that based upon the Plaintiff's pleadings, the original creditor is either Mercedes-Benz Financial Services, LLC or Daimler Trust, but not the Plaintiff.

In opposition to the cross-motion, the Plaintiff argues that it has properly plead the elements necessary to establish both a breach of action and account stated. Plaintiff further states that it is the original creditor, as defined in CPLR 105(q-1), and that Mercedes-Benz Financial Services, LLC is the servicer of the lease. Plaintiff argues that the named party, Mercedes-Benz Vehicle Trust, is the original creditor pursuant to CPLR 105(q-1).

The Court first considers the Plaintiff's motion to amend its complaint. 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." While in this matter, Plaintiff stated in the attorney affirmation what paragraph 6 should have read, Plaintiff failed to submit an amended pleading as required by CPLR 3025(b). The Court denies Plaintiff's application based upon its failure to submit the proposed pleading (see Pressley v City of New York, 233 AD3d 932, 939 [2d Dept 2024; Pressley v City of New York, 233 AD3d 932, 939 [2d Dept 2024]; Barone v Concert Serv. Specialists, Inc., 127 AD3d 1119, 1120 [2d Dept 2015]; Chang v First Am. Tit. Ins. Co. of New York, 20 AD3d 502, 502 [2d Dept 2005]).

Turning next to the Defendant's cross-motion, the Defendant argues that dismissal is warranted under both the original pleading and the proposed amendment. On a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), the court "must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Doe v Eliyas, 241 AD3d 1271 [2d Dept 2025]) (internal citations omitted). When a party "offers evidentiary proof on a motion pursuant to CPLR 3211 (a) (7), and such proof is considered . . . 'the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate (Whelan v Cuomo, 220 AD3d 979, 980 [2d Dept 2023]) (internal citations omitted).

Defendant argues that the Plaintiff has failed to comply with the pleading requirements of CPLR 3016(j). Enacted into law in 2021 as part of the Consumer Credit Fairness Act, CPLR 3016(j) sets forth several facts that must be plead in a consumer credit action where a borrower [*2]is the defendant. Subsection (j)(7) directs the plaintiff to set forth whether the plaintiff is the original creditor or the chain of title from the original creditor to the plaintiff. CPLR 105(q-1) defines "original creditor" as the entity that "owned a consumer credit account at the date of default giving rise to a cause of action."

While it may be true that the account was not assigned, as argued by the Plaintiff, the entity that owned the account when the default occurred was Daimler Trust. Based upon Plaintiff's own evidentiary submissions, Daimler Trust was a separate and distinct entity prior to its merger with the Plaintiff. According to the Plaintiff's complaint, the last payment on the account was made on May 19, 2022, and a final statement was provided to the Defendant on October 14, 2022. Therefore, it is without question that both causes of action accrued in 2022. As the merger did not occur until January 2023, Plaintiff is not the original creditor, as defined in CPLR 105(q-1). While the Plaintiff may have assumed the rights of Daimler Trust at the time of the merger, it did not possess any of those rights at the time of the default (see Del. Code Ann. tit. 8, § 259). Regardless of whether the Court examines the original pleading or the proposed amendment, the result is the same. Since the Plaintiff failed to comply with the requirements of CPLR 3016(b), the complaint must be dismissed (see Am. Express Natl. Bank v Klein, 2024 NY Slip Op 30039[U], *5 [Sup Ct, Orange County 2024]).

Accordingly, it is hereby

ORDERED that the Plaintiff's motion is DENIED; and it is further

ORDERED that the Defendant's cross-motion is GRANTED; and it is further

ORDERED that the matter is DISMISSED.

This is the final decision and order of the Court.