Vacating a Default Judgment in New York - Another Potential Tool

Under CPLR § 3215(a), if the defendant has not appeared, the clerk may enter a default judgment if the claim is for money and the amount is for a sum certain.

A recent case, Stephen B. Gleich & Associates v Gritsipis, 87 AD3d 216, 927 NYS2d 349 [2nd Dept 2011] has addressed the question of what happens if there are multiple claims in a suit, and not all of them fall within the "sum certain" category. Gritsipis involved a law firm suing for its fees, and the claims were for services and disbursements rendered, unjust enrichment and account stated. A clerk default had been obtained, and the defendant sought vacatur.

The court first noted that a legal services claim is essentially one in quantum meruit, which requires a trial on how much the services are worth, and the same is true on the claim for unjust enrichment. Neither are for a "sum certain." The court added that both claims are equitable in nature and enforceable only if there is no valid and enforceable contract between the parties, as in the case at bar.

The account stated claim, said the court, might qualify as a claim for a sum certain, depending on the dealings between the party, but since all the claims did not pass the sum certain test, the default application needed to go before a judge, and it had not, so the default judgment must be vacated.

So in instances where the complaint is a mix of sum certain and equitable claims, you might want to use Gritsipis as part of your tool kit when attempting to vacate a default judgment. However, beware, because the court did not end its analysis there.

The court then went on to address a second issue, which was whether vacating the clerk's judgment also requires the vacatur of the underlying finding that the defendant was in default, or whether upon vacatur, the underlying default judgment remains intact.

In answering this question, the court's conclusion was dependant upon whether the defendant had a reasonable excuse and meritorious defense under CPLR § 5015(a)(1), which governs motions to vacate. The court concluded that the defendant had failed to make such a showing, and therefore, though the judgment was vacated, the liability finding remained. The court remanded the case for a trial on damages.

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