New York City Debt Collection Defense Attorneys

Two Basic Ways to Obtain a Default Judgment in New York: Clerk & Judge

What exactly is a “default” in law?

A “default” is defined as “an omission, or a failure to do that which is anticipated, expected, or required in a given situation." (Legaldictionary.com).

Failing to answer a complaint or otherwise appear in a lawsuit is one way to default. Other ways a party can default is by a) failing to proceed to trial as ordered by the court; b) failing to comply with an order for disclosure; c) failing to pay a penalty as ordered by the court; and d) failing to plead pursuant to an order dismissing an action with leave to re-plead.

Does a default admit anything?

A default admits all factual allegations and all reasonable inferences drawn from a complaint.

But a default does not admit legal conclusions that are reserved for the court's determination.[1] Therefore, the court is not required to grant motions indiscriminately based on defaults—even in cases with properly pled complaints.[2] The court retains the discretionary obligation to determine whether a plaintiff has met the burden of stating a prima facie case.[3]

What is a clerk’s judgment?

Entry of a judgment happens when the clerk of the court signs and files the judgment. Court clerks directly (without a judge) may enter a judgment if the complaint seeks a “sum certain.” Examples of such cases involve breach-of-contract and account-stated, which pinpoint an exact sum due by computation. Assuming the plaintiff tenders the requisite proof under CPLR § 3215(f) (below), a judge is not needed to compute the sum certain and enter judgment for it.

What is required for a clerk’s judgment?

The two basic requirements for a clerk’s default judgment:

  1. The application to the clerk must be made within one year after default; and
  2. The claim is for a “sum certain” or for an amount that may be computed as certain.[4]

Even in cases alleging a “sum certain,” any attempt to secure a default judgment after one year of default requires a court order.

When entering a clerk’s judgment against fewer than all defendants, the clerk severs the action as against the remaining defendants.[5]

By the way, a clerk’s mistake or irregularity in entering a default judgment that is not related to jurisdiction is not void but “erroneous.”[6]

For more explanation about the “sum certain” requirement, see my prior blog, Smart Way to Attack your Creditor Default Judgment: The “Sum Certain” Element.

Can a defendant utilize a default judgment for anything?

Yes, a defendant may also take advantage of a clerk's judgment when a plaintiff unreasonably neglect to proceed or appear at trial. A defendant may make application to the clerk within one year after plaintiff’s default, and the clerk, upon submission of the requisite proof, is required to enter judgment for costs. [7]

When and how do I apply to a Judge for a default judgment?

In cases where judicial discretion is required, a plaintiff must “apply” to the court for judgment.[8] As stated above, any judgment not based on a “sum certain” requires a judge’s review.

What Proof is Needed to Get a Default Judgment Ordered by a Judge?

  1. Proof of service of the summons and complaint or summons with notice; and
  2. Either: a) a verified complaint signed by a party (not the plaintiff’s attorney); or b) an affidavit[9] made by the party of the "facts constituting the claim," the default, and the amount due.[10]
  3. Prima facie proof of a cause of action.[11]

A verified complaint may be used as the affidavit of the facts constituting the claim and the amount due. Still needed though would be an affidavit as to the default made by the party or the party's attorney. Also note that a failure to file proof of the facts constituting the claim, is not a jurisdictional defect, as would render a default judgment a nullity.[12]

Additional notice requirements are now mandated under the Consumer Credit Fairness Act. For more information about it, see 5 Powerful Lawsuit Defenses for New York Debtors in 2022

What other facts related to a default must a judge review?

Circumstances of a default that may involve weighing evidence include:

  • failing to proceed to trial as ordered by the court;
  • failing to comply with an order for disclosure;
  • failing to pay a penalty as ordered by the court; or
  • failing to plead pursuant to an order dismissing an action with leave to re-plead.

Which New York Law Governs Default Judgments: CPLR § 3215

Below, I cut-and-pasted the entirety of CPLR § 3215. I have bolded language that is especially relevant to consumer-debt litigation, including language from the Consumer Credit Fairness Act of 2022.

Particularly relevant to consumer debtors are subsections (f), extra proof needed in consumer-credit cases, and (g), notice requirements.

§ 3215. Default judgment

(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest. Upon entering a judgment against less than all defendants, the clerk shall also enter an order severing the action as to them. When a plaintiff has failed to proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the defendant may make application to the clerk within one year after the default and the clerk, upon submission of the requisite proof, shall enter judgment for costs. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment.

(b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, properly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-examination. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application. Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305 of this chapter.

(c) Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.

(d) Multiple defendants. Whenever a defendant has answered and one or more other defendants have failed to appear, plead, or proceed to trial of an action reached and called for trial, notwithstanding the provisions of subdivision (c) of this section, upon application to the court within one year after the default of any such defendant, the court may enter an ex parte order directing that proceedings for the entry of a judgment or the making of an assessment, the taking of an account or proof, or the direction of a reference be conducted at the time of or following the trial or other disposition of the action against the defendant who has answered. Such order shall be served on the defaulting defendant in such manner as shall be directed by the court.

(e) Place of application to court. An application to the court under this section may be made, except where otherwise prescribed by rules of the chief administrator of the courts, by motion at any trial term in which the action is triable or at any special term in which a motion in the action could be made. Any reference shall be had in the county in which the action is triable, unless the court orders otherwise.

(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due, including, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies, by affidavit made by the party, or where the state of New York is the plaintiff, by affidavit made by an attorney from the office of the attorney general who has or obtains knowledge of such facts through review of state records or otherwise. Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney. In an action arising out of a consumer credit transaction, if the plaintiff is not the original creditor, the applicant shall include: (1) an affidavit by the original creditor of the facts constituting the debt, the default in payment, the sale or assignment of the debt, and the amount due at the time of sale or assignment; (2) for each subsequent assignment or sale of the debt to another entity, an affidavit of sale of the debt by the debt seller, completed by the seller or assignor; and (3) an affidavit of a witness of the plaintiff, which includes a chain of title of the debt, completed by the plaintiff or plaintiff's witness. The chief administrative judge shall issue form affidavits to satisfy the requirements of this subdivision for consumer credit transactions. When jurisdiction is based on an attachment of property, the affidavit must state that an order of attachment granted in the action has been levied on the property of the defendant, describe the property and state its value. Proof of mailing the notice required by subdivision (g) of this section, where applicable, shall also be filed.

(g) Notice.

1. Except as otherwise provided with respect to specific actions, whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application, and if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise. The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial.

2. Where an application for judgment must be made to the court, the defendant who has failed to appear may serve on the plaintiff at any time before the motion for judgment is heard a written demand for notice of any reference or assessment by a jury which may be granted on the motion. Such a demand does not constitute an appearance in the action. Thereupon at least five days' notice of the time and place of the reference or assessment by a jury shall be given to the defendant by service on the person whose name is subscribed to the demand, in the manner prescribed for service of papers generally.

3.

(i) When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend “personal and confidential” and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant's place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence.

(ii) The additional notice may be mailed simultaneously with or after service of the summons on the defendant. An affidavit of mailing pursuant to this paragraph shall be executed by the person mailing the notice and shall be filed with the judgment. Where there has been compliance with the requirements of this paragraph, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.

(iii) This requirement shall not apply to cases in the small claims part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property, except residential mortgage foreclosure actions.

4.

(i) When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment.

(ii) The additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant corporation pursuant to paragraph (b) of section three hundred six of the business corporation law, and shall be accompanied by a notice to the corporation that service is being made or has been made pursuant to that provision. An affidavit of mailing pursuant to this paragraph shall be executed by the person mailing the summons and shall be filed with the judgment. Where there has been compliance with the requirements of this paragraph, failure of the defendant corporation to receive the additional service of summons and notice provided for by this paragraph shall not preclude the entry of default judgment.

(iii) This requirement shall not apply to cases in the small claims part or commercial claims part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property.

(h) Judgment for excess where counterclaim interposed. In an action upon a contract where the complaint demands judgment for a sum of money only, if the answer does not deny the plaintiff's claim but sets up a counterclaim demanding an amount less than the plaintiff's claim, the plaintiff upon filing with the clerk an admission of the counterclaim may take judgment for the excess as upon a default.

(i) Default judgment for failure to comply with stipulation of settlement.

1. Where, after commencement of an action, a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment in a specified amount with interest, if any, from a date certain, the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with a complaint or a concise statement of the facts on which the claim was based, and, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies.

2. Where, after commencement of an action, a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment dismissing the action, the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with the pleadings or a concise statement of the facts on which the claim and the defense were based.

(j) Affidavit. A request for a default judgment entered by the clerk, must be accompanied by an affidavit by the plaintiff or plaintiff's attorney stating that after reasonable inquiry, he or she has reason to believe that the statute of limitations has not expired. The chief administrative judge shall issue form affidavits to satisfy the requirements of this subdivision for consumer credit transactions.

Credits

(L.1962, c. 308. Amended L.1964, c. 290, § 1; L.1965, c. 148, § 1; L.1965, c. 749, §§ 2, 3; L.1966, c. 487, § 1; L.1967, c. 31, § 1; L.1968, c. 720, § 1; L.1977, c. 344, § 3; L.1986, c. 77, §§ 2, 3; L.1986, c. 355, § 8; L.1990, c. 419, § 2; L.1990, c. 584, § 2; L.1992, c. 255, § 1; L.1994, c. 100, § 4; L.2006, c. 453, § 1, eff. Aug. 16, 2006; L.2007, c. 458, § 2, eff. Aug. 1, 2007; L.2019, c. 627, § 1, eff. Dec. 12, 2019; L.2021, c. 593, § 11, eff. May 7, 2022; L.2021, c. 831, § 2, eff. April 30, 2022.)

 

[1] Dyno v. Rose, 687 N.Y.S.2d 497 (3d Dep't 1999); Green v. Dolphy Const. Co., Inc., 187 A590 N.Y.S.2d 238 (2d Dep't 1992).

[2] Dyno v. Rose, 687 N.Y.S.2d 497 (3d Dep't 1999).

[3] Dyno v. Rose, 687 N.Y.S.2d 497 (3d Dep't 1999); Green v. Dolphy Const. Co., Inc., 590 N.Y.S.2d 238 (2d Dep't 1992).

[4] Card v. Polito, 389 N.Y.S.2d 696 (4th Dep't 1976).

The clerk lacked authority to enter judgment in a negligence action, where the plaintiff was not seeking to recover a sum certain. Fidelity Nat. Title Ins. Co. v. Valtech Research, Inc., 73 A.D.3d 686, 905 N.Y.S.2d 172 (2d Dep't 2010).

[5] CPLR 3215(a).

[6] Freccia v. Carullo, 462 N.Y.S.2d 38 (2d Dep't 1983).

[7] CPLR 3215(a). This provision should be read in conjunction with CPLR 3215(c), under which the defendant may move for dismissal of the complaint upon the plaintiff's failure to take judgment within a year of the default, and the provision of CPLR 3215(a), limiting the clerk's authority to enter a default judgment for the plaintiff to a period of one year following the default. To the extent that these provisions penalize a plaintiff for their failure or neglect to proceed, they form part of a statutory plan to discourage undue delay in terminating litigation.

[8] CPLR 3215(a).

[9] Hann v. Morrison, 668 N.Y.S.2d 764 (3d Dep't 1998); Goodyear v. Weinstein, 638 N.Y.S.2d 108 (2d Dep't 1996).

The trial court properly denied plaintiffs' cross-motion for leave to enter a default judgment on the issue of liability on a cause of action for specific performance of a contract for the sale of a condominium unit where plaintiffs did not submit an affidavit of the facts or a complaint verified by a party with personal knowledge thereof. Dess v. LRM Builders, LLC, 869 N.Y.S.2d 124 (2d Dep't 2008).

[10] CPLR 3215(f).

Plaintiffs in an action to declare a prescriptive easement were entitled to entry of a default judgment against a neighboring landowner, where they submitted proof of service of the summons and complaint, a copy of the complaint, which was verified on personal knowledge by the plaintiff's vice president of asset management, and the several correspondences between counsel evidencing the multiple extensions of time to answer afforded to the defendant. Triangle Properties 2, LLC v. Narang, 903 N.Y.S.2d 424 (2d Dep't 2010).

The sufficiency of the state's application for a default judgment against a deliverer of petroleum to a spill site was to be determined on the basis of the application at the time it was made, rather than on the basis of the factual record compiled during pretrial discovery, even though the deliverer's default did not preclude it from participating in fact discovery in connection with its claims for affirmative relief against other potentially responsible parties. State v. Williams, 890 N.Y.S.2d 789 (Sup 2009).

Entry of a default judgment against a defendant was proper where the plaintiff submitted proof of service of the summons and complaint, a factually detailed, verified complaint, and an affirmation from its attorney regarding the defendant's default in appearing and answering. 599 Ralph Ave. Development, LLC v. 799 Sterling Inc., 825 N.Y.S.2d 129 (2d Dep't 2006).

A plaintiff who submitted proof of service of a summons and complaint and a factually detailed, verified complaint was entitled to a default judgment against a defendant on the issue of liability in a personal injury action, where the defendant failed to appear or answer. Zino v. Joab Taxi, Inc., 799 N.Y.S.2d 124 (2d Dep't 2005).

Plaintiff's motion for leave to enter judgment upon defendant's default in a personal injury case was technically defective in that there was no proof of the underlying claim in compliance with the statutory requirement. Grainger v. Wright, 713 N.Y.S.2d 182 (2d Dep't 2000).

[11] Gagen v. Kipany Productions Ltd., 735 N.Y.S.2d 225 (3d Dep't 2001).

The holder of the mortgage on three parcels of real property failed to state a prima facie case that a mutual mistake had been made as to the property description in the mortgage justifying either reformation of the mortgage to contain a legal description of all three parcels or a declaration that they were burdened by an equitable lien, and therefore, default judgment against defendant mortgagor was not warranted; although mortgage holder's complaint baldly stated that a mutual mistake had occurred when the mortgage was executed, it did not make any allegations that a mortgage burdening all three parcels was agreed upon between the parties so as to warrant either reforming the existing mortgage to that effect or imposing an equitable lien. Nationstar Mortgage, LLC v. Hilpertshauser, 66 N.Y.S.3d 687 (3d Dep't 2017).

Where there is a defense of lack of personal jurisdiction, a defendant need not show a reasonable excuse and meritorious defense in order to successfully oppose motion for default judgment. Johnson v. Deas, 819 N.Y.S.2d 751 (1st Dep't 2006).

Failure of a nonmoving party to oppose a motion to dismiss cross-claims for indemnification and restitution did not entitle the moving party to judgment as a matter of law on the default, where the moving party did not establish prima facie entitlement to the relief sought, since the motion to dismiss was based solely on a res judicata argument which the supreme court later rejected. AMEC Const. Management, Inc. v. City of New York, 19 N.Y.S.3d 30 (1st Dep't 2015).

Mortgagors in a foreclosure action were properly held in default based on failure to appear or answer a complaint, where the plaintiff submitted an affidavit of merit from a representative of its servicing agent, accompanied by a power of attorney demonstrating the authority of the agent to act on behalf of the plaintiff, which set forth the facts establishing the claim, including that the plaintiff was the holder of the mortgage and note and that the mortgagors defaulted thereon, and proof that the mortgagors failed to answer within the time allowed. US Bank Nat. Ass'n v. Smith, 132 A.D.3d 848, 19 N.Y.S.3d 62 (2d Dep't 2015).

An assignee of a reverse mortgage, as movant for a default judgment in a foreclosure action, failed to make a prima facie showing of entitlement to a default judgment, where the assignee failed to submit proof of the mortgagor's default in paying property taxes and home insurance, as would provide grounds under the loan documents for accelerating the debt, and failed to submit proof that it had notified those entities tasked with protecting the interests of elderly mortgagors involved in reverse mortgage programs. Reverse Mortg. Solutions, Inc. v. Lanfrit, 58 Misc. 3d 257, 66 N.Y.S.3d 833 (Sup 2017).

[12] Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 969 N.Y.S.2d 424, 991 (2013); Zaidman v. Zaidman, 935 N.Y.S.2d 147 (2d Dep't 2011).

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