`NYSCEF DOC. NO. 20
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`INDEX NO. EF2020-9
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`RECEIVED NYSCEF: 06/08/2022
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`ULSTER COUNTY
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`Decision and Order
`Index No.: EF2020-9
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`STATE OF NEW YORK
`SUPREME COURT
`DISCOVER BANK,
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`-agalnst-
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`Plaintifl.
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`KENNETH KROM AKA KENNETH H. KROM,
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`Defendant.
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`Supreme Court, Ulster County
`Motion Retum Date: February 10,2022
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`Present: Julian D. Schreibman. JSC
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`Appearances
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`Schreibman, J.:
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`Zwicker & Associates, P.C.
`Attomeys for Plaintiff
`100 Corporate Woods, Suite 230
`Rochester. New York 14623
`By: Joseph M. Jackling, Esq.
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`Plaintiff commenced this action to recover $12,592.75 it alleges are due and owing as a
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`result of defendant's default in repayment under the terms of the parties' loan agreement.
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`Defendant was personally served with the summons and complaint in January 2020. He has not
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`answered and his time within which to do so expired on February 5,2020. By notice of motion
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`dated December 27 ,2021, plaintiff brought the instant application for a default judgment.
`Plaintiff has properly supported its motion with proof of service, proof ol defendant's
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`default and proofofthe facts ofits claim. lts motion must nevertheless be denied. A party seeking
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`a default must do so within one year after the default occurs. (CPLR $ 3215 [c]). Where, as here,
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`the plaintiff fails to do so, $3215 [c] directs the Court to dismiss the complaint unless sufficient
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`cause is shown why it should not be dismissed. Plaintiff candidly acknowledges that its motion
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`was filed 97 days after the expiration ofthe one-year period, inclusive ofthe tolling period allowed
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`1
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`1 of 2
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`FILED: ULSTER COUNTY CLERK 06/08/2022 09:51 AM
`NYSCEF DOC. NO. 20
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`INDEX NO. EF2020-9
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`RECEIVED NYSCEF: 06/08/2022
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`by former Govemor Cuomo's Executive Orders tolling limitations periods due to the COVID-19
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`pandemic. To avoid dismissal, plaintiff was required to proffer an explanation for its delay. (Van
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`Hoesen v Dolen,94 AD3d 1264 [3'd Dept. 2012], lv. denied, 19 NY3d 809 [2012]). Plaintifls
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`submissions do not address the reason for its delay in this matter. Its general reference, in its
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`memorandum of law, to the wide-spread effects oithe pandemic is insufficient. As such, it would
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`be improvident exercise of discretion for this court to grant a default. (1d.) Accordingly, it is
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`hereby
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`ORDERED that plaintifls motion for a default judgment is denied without prejudice to a
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`subsequent motion on proper papers. Any such motion must be made within sixty (60) days of the
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`date ofentry ofthis Decision and Order.
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`This shall constitute the Decision and Order ofthe Court. The original Decision and Order
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`is being filed with the Ulster County Clerk via NYSCEF. The signing of this Decision and Order
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`shall not constitute entry or filing under CPLR $2220. Counsel is not relieved from the applicable
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`provisions of that rule regarding notice of entry.
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`SO ORDERED.
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`Dated: June 4,2022
`Kingston, New York
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`I
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`J LIAN D. S
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`IBMAN, JSC
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`Papers considered: Notice of Motion, Alfirmation in Support and Memorandum oiLaw by Joseph
`M. Jackling, Esq. dated December 27, 2021 , with Exhibits A-E.
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`2 of 2
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