Cup Purchase Equities Llc V Pollock

Key Facts

Transaction Type

Deceased Name

Issues

• The court sua sponte dismissed the complaint against Pamela Pollock under CPLR 3215(c) due to the plaintiff's failure to pursue a default judgment within one year of Pollock's default. The court emphasized the mandatory nature of this provision, deeming the claim abandoned.
• The court granted MNB's motion to dismiss the complaint under CPLR 3211(a)(7), ruling that the plaintiff failed to state viable causes of action (breach of contract and specific performance) against MNB. The unrecorded CUP Contract was not binding on MNB, and the plaintiff did not file a cross-motion to amend the complaint with new claims or provide a proposed amended pleading.

Holdings

• The court granted the motion by defendant MNB 318 Third St LLC to dismiss the complaint against it under CPLR 3211(a)(7) for failure to state a cause of action. The claims for breach of contract and specific performance were based on an unrecorded contract to which MNB was not a party. The court also denied the plaintiff's request to amend the complaint due to the absence of a proposed amended pleading and failure to file a cross-motion under CPLR 2215.
• The court sua sponte dismissed the complaint against defendant Pamela Pollock, Executrix of the Estate of Arthur Pollock, under CPLR 3215(c) for the plaintiff's failure to seek a default judgment within one year after Pollock's default. The court emphasized the mandatory nature of this dismissal, as the plaintiff did not demonstrate sufficient cause to avoid the abandonment of the claim.

Remedies

• The complaint is dismissed as against defendant Pamela Pollock for plaintiff's failure to take proceedings for judgment within one year of her default under CPLR 3215(c).
• The motion by defendant MNB 318 Third St LLC is granted, dismissing the complaint for failure to state a cause of action under CPLR 3211(a)(7).
• The complaint is dismissed as against all parties, concluding the case.

Contract Value

Legal Principles

• Dismissal under CPLR 3211(a)(7) for failure to state a cause of action against MNB due to the unrecorded CUP Contract and lack of viable claims.
• Dismissal under CPLR 3215(c) for plaintiff's failure to take proceedings for judgment within one year after the default of defendant Pamela Pollock, leading to sua sponte dismissal of the complaint.

Succession Regime

Precedent Name

• Connaughton v Chipotle Mexican Grill, Inc.
• BAC Home Loans Servicing, L.P. v Mazza
• Giglio v NTIMP, Inc.
• Chanko v American Broadcasting Cos. Inc.
• Ibrahim v Nablus Sweets Corp.
• Fried v Jacob Holding, Inc.
• Deutsche Bank Natl. Tr. Co. v Ezagui
• Recine v Recine
• Sassi v Mobile Life Support Servs., Inc.
• Aristy-Farer v State
• Chang v First Am. Title Ins. Co. of New York

Executor Name

Cited Statute

Executor Appointment

Judge Name

Passage Text

• ORDERED that upon the Court's own motion, the complaint is dismissed as against defendant Pamela Pollock, Executrix of the Estate of Arthur Pollock, for plaintiff's failure pursuant to CPLR 3215 (c) to take proceedings for the entry of judgment within one year after the default of defendant Pamela Pollock, Executrix of the Estate of Arthur Pollock;
• ORDERED that that the motion by defendant MNB 318 Third St LLC (motion sequence no. 2) is granted to the extent that the complaint is dismissed as against defendant MNB 318 Third St LLC for failure to state a cause of action under CPLR 3211 (a) (7);
• The 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.