Today we report to you on a case called Resurgent Capital Services, LLC v. Mackey, decided in the Nassau County District Court. In this case, plaintiff’s counsel, Mel Harris & Associates, claimed in its complaint, dated October 6, 2010, that the plaintiff, Resurgent, was the purchaser and assignee of an account acquired from Capital One. About six months later, Mel Harris & Associates filed a “Motion to Amend Caption,” supported by a February 2, 2011 affirmation which stated that Resurgent actually never bought the account at issue in the litigation, and the real party in interest was LVNV Funding. The affirmation provided no explanation for the error, and attached no proof that LVNV was in fact the real party in interest. Later, on April 22, 2011, plaintiff’s counsel Mel Harris & Associates sought to avoid dismissal by filing a Notice of Discontinuance without prejudice, on notice, pursuant to CPLR § 3217(a)(1).
Judge Michael A. Ciaffa on May 2, 2011 denied Mel Harris & Associates’ motion to amend the caption, and dismissed the complaint, stating, “Proper identification of the plaintiff is a basic requirement of due process.”
Judge Ciaffa noted that a plaintiff has at most twenty days after service of its own pleading to discontinue an action, that twenty days had long ago expired, and that while CPLR § 3217(b) allowed the court the discretion to discontinue an action, the court was not inclined to allow Mel Harris and Associates a “do over.” The court went on to say, “Counsel’s failure to properly identify the alleged assignee of the underlying debt reflects an all too common lack of due diligence by attorneys involved in high volume assigned debt practices. The correct identity of the plaintiff should have been determined at the outset of the case. Moreover, to this day, the Court has not been presented with any proof respecting the alleged assignment.”