Motion For Default Judgment And Cross Motion To Dismiss Complaint As Abandoned Or For Failure Of Timely Service Denied

Posted: January 12, 2026 / Written by: Joshua Wurtzel, John Moore, Channing J. Turner, Samuel L. Butt, Thomas A. Kissane / Categories Default Judgment, Service of Process, Court Rules/Procedures

Motion For Default Judgment And Cross Motion To Dismiss Complaint As Abandoned Or For Failure Of Timely Service Denied

On November 18, 2025, Justice Joel M. Cohen denied both a plaintiff’s motion for default judgment and defendant’s cross-motion which sought to dismiss the complaint as abandoned or untimely. The case is B. Riley Retail Solutions, LLC v. CA Global Partners Ltd., Index No. 651626/2024.

As to the motion for default:

Plaintiff has filed two affirmations of service each purporting to reflect service on an alleged agent of Defendant (see Sands Affirm.; White Affirm.), thereby raising a presumption of proper service. However, that presumption is rebutted by sworn affirmations from both individuals denying any relationship with Defendant (see NYSCEF 26 [“Schwaderer Affirm.”]; NYSCEF 27 . . ., a sworn testimony from Defendant’s counsel denying receipt of service by any authorized person . . ., conflicting accounts as to the sex of one of the servers (cf. Sands Affirm. and Schwaderer Affirm.), and inconsistencies regarding the contents of the complaint allegedly served . . ..

Considering the disagreement between the parties, the Court cannot definitively conclude that service was properly effectuated.

Slip op., pp. 1-2.

Justice Cohen denied defendant’s motion to deem the complaint abandoned under CPLR 3215(c), which calls for dismissal if plaintiff fails to initiate proceedings for the entry of judgment within one year after default. The court reasoned that it was not possible to say whether a default had occurred given that the question whether service had been properly effected was unresolved, and explained that

CPLR 3215(c) provides a safeguard against dismissal by allowing an extension of the one-year period upon a showing of “sufficient cause.” . . .

Plaintiff filed the motion for default judgment on July 9, 2025, approximately 18 days after the one-year period expired. However, the record indicates that Plaintiff’s counsel was absent from work due to a serious family medical issue around the time that a motion for default judgment was due . . .. Under the circumstances, this constitutes a reasonable excuse for the brief delay. Furthermore, Plaintiff has asserted a meritorious cause of action based on Defendant’s alleged breach of a promissory note in response to which Defendant has, as of yet, offered no substantive defense (see Back v Stern, 23 AD2d 837, 837 [1st Dept 1965]; Compl. ¶¶ 27-32).

Accordingly, even if the Complaint was deemed to have been properly served, Plaintiff has made a sufficient showing to avoid dismissal under CPLR 3215(c). Defendant’s crossmotion to deem the Complaint abandoned is therefore denied.

Id., pp. 3-4. Defendant’s alternative cross-motion to dismiss the complaint as untimely was also denied, not only because the issue of service was unresolved but also because:

Plaintiff has shown good cause for any delay in service through the submission of affidavits purporting to evidence timely and proper service. Furthermore, it is in the interests of justice that Plaintiff be given additional time to serve. Plaintiff has alleged a meritorious claim in response to which Defendant has failed to articulate any substantive defense, and the Statute of Limitations has run . . ..”

Slip op., p. 5. Justice Cohen direct Plaintiff to serve Defendant within thirty (30) days, “failing which the Complaint shall be dismissed.” Id., p. 6.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning default judgment or abandonment of actions.