Rahman v Santos

Supreme Court, Kings County

Decided on May 8, 2026

Index No. 521750/2024

Aaron D. Maslow, J.

The following papers efiled on NYSCEF were used on this motion:

Filed by Defendants

Notice of motion & supporting documents: Doc Nos. 5-11

Filed by Plaintiff

Opposition: Doc Nos. 12-16

Filed by Defendants

Reply: Doc No. 17

Upon the foregoing papers, having elected to determine the within motion on submission in accordance with IAS Part 2 Rules § D6, and due deliberation having been had, the within motion by defendants to dismiss plaintiff's summons and complaint is determined as follows.

Background

The complaint in this action alleged that plaintiff was the operator of a vehicle on August 21, 2021, on the Southern State Parkway at or near Exit 15, when it came into contact with a vehicle owned by defendant Jose A. Delao and operated by defendant Jonas Custodio Santos (see NY St Cts Elec Filing [NYSCEF] Doc No. 7, complaint). Claiming personal injuries from the accident, Plaintiff commenced this action on August 13, 2024 (see NYSCEF Doc No. 6, Piacentini aff ¶ 11).

Proof of service on defendant Delao by "nail-and-mail" — "nail" on August 28, 2024 and mail on August 30, 2014 — was filed on September 2, 2024 (see id. ¶ 13; NYSCEF Doc No. 9, Cunningham aff). Proof of service on defendant Santos on August 22, 2024 by substituted service and mail was also filed on September 2, 2024 (NYSCEF Doc Nos. 6, Piacentini aff ¶ 12; 8, Cunningham aff).

Service being complete ten days later pursuant to CPLR 308 (2), to wit, September 12, 2024, defendants' answer was due October 14, 2024.^FN1 Defendants did not answer the complaint. On November 7, 2025, defendants moved for an order dismissing the summons and complaint on the grounds that plaintiff failed to take proceedings for a default judgment against them within one year of service of the complaint and that plaintiff lacks personal jurisdiction over defendants (see NYSCEF Doc No. 5, notice of motion).

Movants' (Defendants') Contentions

Defendants contend that they never received copies of the summons and complaint by mail, that more than 120 days have passed from the time that the summons and complaint was filed with the County Clerk, that service of process was never completed pursuant to CPLR 306-b, that dismissal is warranted due to lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), that dismissal is warranted as more than one year has elapsed without plaintiff moving for a default judgment as required by CPLR 3215 (c), and that no new action may be commenced pursuant to CPLR 214's statute of limitations for injuries resulting from negligence. (See NYSCEF Doc No. 6, Piacentini aff ¶ 12.)

Plaintiff's Opposition

Plaintiff opposes dismissal of the complaint. He asserts that in the August 21, 2021 motor vehicle accident, defendants' vehicle changed lanes on the highway and then struck plaintiff's vehicle, causing plaintiff to sustain severe and permanent injuries (see NYSCEF Doc No. 12, O'Rourke aff ¶ 4). Defendants were properly served with the summons and complaint and have not offered any evidence to refute the affidavits of service (see id. ¶ 6). Not only were defendants properly served but their insurance company, GEICO, was repeatedly requested to [*2]answer the complaint, emails to GEICO having been sent on December 27, 2024; January 15, 2025; February 11, 2025; February 14, 2025; and October 28, 2025 (see id. ¶ 7). Despite these courtesies, defendants did not answer.

Plaintiff maintains:

Here, plaintiff has been extending numerous professional courtesies to Geico reminding and requesting them to have an Answer submitted in this action, instead of plaintiff running into Court for a default judgment against them. Plaintiff's proactive and repeated attempts to remind Geico to file an Answer in this action is the opposite of abandonment and demonstrates sufficient causes of plaintiff courteously not moving for a default judgment within the (1) year time frame. It is clear that Plaintiff has a meritorious negligence claim from this accident and it is also clear the defendants will suffer no legal or other prejudice from a denial of their within motion. (Id. ¶ 7.)

Plaintiff seeks to have defendants submit an answer and that the case be decided on the merits or that an inquest be conducted against defendants due to their continued failure to answer the complaint (see id. ¶ 8).

Movants' (Defendants') Reply Contentions

Defendants contend that plaintiff's opposition has not offered any justification for failing to move for a timely default nor has the plaintiff provided any case law or statutory exceptions that would excuse him from the obligations set forth in the CPLR (see NYSCEF Doc No. 17, Piacentini reply ¶ 2). As for the emails referenced by plaintiff, they were sent to a phone number ending with "@faxmail.com," not to an individual. There is no evidence of a response to the emails or confirmation of their receipt (see id. ¶ 6). Regardless of whether plaintiff believed the messages were received, there is no evidence that GEICO requested that plaintiff forego on default proceedings or postpone them in any way (see id. ¶ 8). Moreover, more than four years have passed since the date of the accident. With time, memory fades and evidence diminishes — not only physical evidence from the vehicles, but also the availability and recollection of the witnesses, which in this case includes the driver of the third vehicle who was not included in the lawsuit (see id. ¶ 12).

Discussion

CPLR 3215 (c) provides:

Default not entered within one year. 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. A motion by the defendant under this subdivision does not constitute an appearance in the action.

The standards for applying CPLR 3215 (c)'s provisions have been discussed in Second [*3]Department case law. For example, in Doe v Garfinkel (234 AD3d 929, 930-931 [2d Dept 2025]), it was stated:

Pursuant to CPLR 3215 (c) "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a defendant's] default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." The language of the statute is strictly construed, as "[t]he language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory inasmuch as courts 'shall' dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]; see Deutsche Bank Trust Co. Ams. v Agostinelli, 230 AD3d 472, 473-474 [2024]). However, the failure to timely seek a default judgment may be excused if sufficient cause is shown (see Shields v Cohen, 222 AD3d 1019, 1021 [2023]). "This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious" (U.S. Bank N.A. v Dickerson, 223 AD3d 930, 932 [2024] [internal quotation marks omitted]; U.S. Bank N.A. v Gonzaga, 222 AD3d 694, 695 [2023]). "The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court" (Giglio v NTIMP, Inc., 86 AD3d at 308; see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2014]).

However, "reversal is warranted if that discretion is improvidently exercised" (Butindaro v Grinberg, 57 AD3d 932, 932 [2008]; see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 752).

Plaintiff's moving papers emphasize defendants' failure to answer his complaint, but case law imposes the burden on a plaintiff to establish why he did not move for a default judgment (see Private Capital Group, LLC v Hosseinipour, 170 AD3d 909 at 911[2d Dept 2019]). "Meat needs to be put on the bones of the plaintiff's affidavit" (Mark C. Dillon, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3215:16 [2021]).

The lengthier a delay, it is less likely that a plaintiff's neglect will be excused (see Dillon, Prac Commentaries, CPLR C3215:16). Here, defendants' answer was due September 12, 2024, and it is now nearly 20 months later. Plaintiff still has not moved for a default judgment (see CitiMortgage, Inc. v Goldstein, 187 AD3d 841 [2d Dept 2020] [18 months before motion for default]; Deutsche Bank Trust Co. Ams. v Deutsch, 157 AD3d 767 [2d Dept 2018] [more than two-year delay]).

The Court rejects plaintiff's explanation for the failure to move for a default judgment within the one-year period ending in September 2025. After two or three reminders — there being no response from defendants — it was evident that no answer would be forthcoming: either the emails were received and intentionally ignored or the email address was not one likely to result in attracting anyone's attention. Plaintiff has failed to establish the source for emailing to the specified number @faxmail.com, i.e., that it was an authorized email address at GEICO. Plaintiff cannot seriously believe that with no response to five emails an answer would be [*4]forthcoming. Rather, it was plaintiff's burden under CPLR 3215 (c) to make a motion for a default judgment if he really wanted to obtain compensation from defendants through the litigation process. Further, there is no assertion by plaintiff that telephone contact with GEICO was sought or that reminders via certified mail return receipt requested (which would have proved receipt of correspondence) were sent. Even had GEICO responded to plaintiff's emails, that still would not necessarily excuse the failure to move for a default judgment (see Quadrozzi Concrete Corp. Individual Account Plan & Trust v Javash Realty, LLC, 164 AD3d 1491 [2d Dept 2018]). This is not a situation where defendants engaged in contact with plaintiff, such as offering to settle (cf. Citimortgage, Inc. v Sahai, 172 AD3d 552 [2d Dept 2019]), or induced plaintiff to delay moving for a default judgment (see Monzon v Sony Motor, Inc., 115 AD2d 714 [2d Dept 1985]).

It was not that difficult for plaintiff to compile a set of papers for a motion for a default judgment, particularly considering that the affidavits of service were already uploaded to NYSCEF on September 2, 2024. Repeatedly sending emails without receiving a response actually demonstrates to the Court that plaintiff was not fervently pursuing his rights.

Finally, this Court notes that nowhere in plaintiff's opposition was there any statement about the merits of plaintiff's cause of action from the person knowledgeable with the facts -- plaintiff. Plaintiff did not submit an affidavit of merit, and the lack of one was not explained. Counsel's affirmation is insufficient, and the submitted complaint was verified by an attorney, not by plaintiff. As such plaintiff's attempt to establish the merits of the claim on the basis of the verified complaint is inadequate (see Costello v Reilly, 36 AD3d 581 [2d Dept 2007]).^FN2 The shortcoming of not discussing the merits of plaintiff's cause of action in the opposition papers alone merits granting defendants' motion (see Solano v Castro, 72 AD3d 932 [2d Dept 2010]; Mattera v Capric, 54 AD3d 827 [2d Dept 2008]; Rendelman v Southside Hosp. [2d Dept 1988] [verified complaint contained only conclusory allegations of negligence]; Cousins v Grant, 166 AD2d 494 [2d Dept 1990]).

The absence of prejudice to the defendant — argued by plaintiff — is not a factor (U.S. Bank National Association v Dickerson, 223 AD3d 930, 205 N.Y.S.3d 100 [2d Dep't. 2024]).

It is true that the resolution of cases on the merits is favored (see Bardes v Pintado, 115 AD3d at 896). It is also true that the law reflects society's interest in giving repose to human affairs, and this is furthered by deadlines which lead to stability and predictability when enforced (see Freedom Mtge. Corp. v Engel, 37 NY3d 1, 20 [2021]). One's ability to defend claims diminishes with the passage of time (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773 [1997]; Martin v Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 NY2d 417, 425 [1983]). These principles were set forth by this state's Supreme Court close to 200 years ago:

[T]he presumption [is] that a man will naturally enjoy what belongs to him, and therefore from his not having sought relief, that his claim has been satisfied or relinquished; and upon the policy that one shall not, by neglecting to establish his demands, subject another to insuperable difficulties in resisting them. (Chalmer v. Bradley, Jac. & W. 63. Hillary v. Waller, 12 Ves. 265. Pickering v. Ld. Stanford, 2 Ves. jr. 280. Jeremy, 549.) In the language of Ld. Erskine, (13 Ves. 397,) human affairs call aloud for such principles in the administration of justice. (Bruen v Hone, 2 Barb 586, 596 [Sup Ct 1848].)

Judicial economy is also enhanced through the enforcement of deadlines (see Blanco v American Tel. & Tel. Co., 90 NY2d at 773-774 [1997]).

It is now close to five years past the date of the subject motor vehicle accident. The statute of limitations has elapsed. Plaintiff would now have this Court excuse his failure to proceed on his claim and compel defendants to interpose an answer, undergo discovery, be subject to motion practice, and defend liability at a trial. This is in addition to imposing a burden on defense counsel (retained by the insurance carrier) to locate defendant driver and try to jog his memory as to what occurred on August 21, 2021. This Court declines to entertain plaintiff's invitation to restart the engine of litigation. It is time for any claims of plaintiff resulting from his August 21, 2021 motor vehicle accident to repose and for all parties and the court system to close their books on this case.

Based on the foregoing, the Court finds that plaintiff has failed to meet the "sufficient cause" standard of CPLR 3215 (c) for excusing his failure to take proceedings for the entry of judgment within one year of defendants' default.

In light of the Court's determining this motion based on plaintiff's failure to move for a default judgment within one year after service was complete, the issue of whether personal jurisdiction over defendants was attained is academic and need not be considered.

Conclusion

It is hereby ORDERED that the motion of defendants Jose A. Delao and Jonas Custodio Santos to dismiss plaintiff Tareq Rahman's complaint is GRANTED. Said complaint is hereby dismissed and the Clerk shall enter judgment to that effect.