CPLR 3215: default judgment

CPLR 3215: when defendant fails to appear in an action, plaintiff may seek default judgment

Plaintiff must move for a default judgment within one year.

CPLR 3215 provides that, when a defendant has failed to appear in an action, the plaintiff may seek a default judgment against him. However, the plaintiff is required to do so within one year after the default, as required by subsection (c) thereof:

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. According to the provisions of the above subsection, this Court should have dismissed the Complaint as abandoned, based upon Plaintiff’s failure to take proceedings for the entry of default within one year. Numerous cases have held that dismissal of the Complaint is required when there has been a failure to take timely proceedings for entry of default. See, e.g., Saunders v. Central Brooklyn Coordinating Council, Inc., 273 AD2d 294 (2d Dept. 2000); PM-OK Associates v. Britz, 256 AD2d 151 (1st Dept. 1998); Lancaster v. Kindor, 98 AD2d 300 (1st Dept. 1984), dismissal denied 64 NY2d 1013, affirmed 65 NY2d 804.

The Second Department has held, in Winkelman v. H&S Beer and Soda Discounts Inc., 91 AD2d 660 (1982), that, absent a justifiable excuse and a showing that the action is meritorious, the plaintiff’s failure to enter a default judgment against the defendant within one year of the latter’s default mandates dismissal of the action against defendant as abandoned. See, also, Rafiq v. Weston, 171 AD2d 783 (2d Dept. 1991). Plaintiff did not allege any excuse in its motion papers for its failure to take timely proceedings.

Default Judgments

NYCCA Section 1402 authorizes the entry of a default judgment where the requirements of CPLR 3215 are complied with. A default judgment may result when:

• A defendant fails to timely answer a summons and complaint

• A plaintiff or defendant fails to appear for a scheduled court appearance (i.e., trial, pre-trial, pre-arbitration)

• A Third party defendant or a defendant served with a cross-claim defaults in answering or appearing at a trial. (A third-party judgment or cross-claim judgment cannot be entered until a judgment is entered on the original claim between the plaintiff and defendant.)

A default judgment may not be entered against a plaintiff based only on a failure of the plaintiff to reply to a counterclaim (unless court ordered) since the counterclaim is deemed denied by the plaintiff.

Liquidated – Sum Certain

Based on CPLR 3215(a), the judgment clerk may only enter a judgment on amounts for a “sum certain” or for a sum which can be made certain by computation.

If the sum demanded in the cause of action is for a sum certain (i.e., breach of contract, goods sold and delivered, promissory note) or based upon a default on a stipulation pursuant to CPLR Section 3215(i) and 5003-a, you may submit an application for a default judgment directly to the clerk.

Under some circumstances, an account stated can be entered as an agreed upon amount. For more information, you can read the court’s directives on  opens in a new windowEntry of Judgment: Account Statedopens PDF file  and  opens in a new windowDefault Judgments on Hospital and Attorney Billsopens PDF file .

Unliquidated – Not a Sum Certain

If the sum demanded is an unliquidated sum (i.e, personal injury, property damage) and does not meet the requirements of CPLR 3215, you must file a Notice of Inquest with the clerk and pay the fee, which is the same fee as a Notice of Trial. To find out the amount of the fee, refer to  opens in a new windowCourt Fees. After the Notice of Inquest is filed, the clerk will place the case on the calendar for an inquest before the Court for assessment of the dollar amount of damages. See Uniform Rules of the Civil Court 208.32. After the assessment, you may file a judgment with the clerk.

More information on:  opens in a new windowInterest opens in a new windowCosts or  opens in a new windowDisbursements.

CPLR 3215(c) provides, in pertinent part…

CPLR 3215(c) provides, in pertinent part, that “[i]f 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.”

The Second Department held, in Pipinias v. J. Sackaris & Sons, Inc., 116 A.D.3d 749, 983 N.Y.S.2d 587 [2 Dept. 2014], lv. denied 24 N.Y.3d 990, 995 N.Y.S.2d 707 [2014], “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” (Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307–308, 926 N.Y.S.2d 546; see Butindaro v. Grinberg, 57 A.D.3d 932, 871 N.Y.S.2d 317; DuBois v. Roslyn Natl. Mtge. Corp., 52 A.D.3d 564, 565, 861 N.Y.S.2d 73; County of Nassau v. Chmela, 45 A.D.3d 722, 722, 846 N.Y.S.2d 299; Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 A.D.3d 624, 625, 804 N.Y.S.2d 815).

Plaintiffs have any shown ANY cause for failure to take proceedings within 1 year of default:

As held, in Pipinias v. J. Sackaris & Sons, Inc., supra, “The one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if ‘sufficient cause is shown why the complaint should not be dismissed’ ” (Giglio v. NTIMP, Inc., 86 A.D.3d at 308, 926 N.Y.S.2d 546, quoting CPLR 3215[c] ). “This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious” (Giglio v. NTIMP, Inc., 86 A.D.3d at 308, 926 N.Y.S.2d 546; see Ryant v. Bullock, 77 A.D.3d 811, 811, 908 N.Y.S.2d 884; Solano v. Castro, 72 A.D.3d 932, 932–933, 902 N.Y.S.2d 95; 115–41 St. Albans Holding Corp. v. Estate of Harrison, 71 A.D.3d 653, 653, 894 N.Y.S.2d 896; Sicurella v. 111 Chelsea, LLC, 67 A.D.3d 996, 996, 888 N.Y.S.2d 752; DuBois v. Roslyn Natl. Mtge. Corp., 52 A.D.3d at 565, 861 N.Y.S.2d 73; County of Nassau v. Chmela, 45 A.D.3d at 722, 846 N.Y.S.2d 299; Durr v. New York Community Hosp., 43 A.D.3d 388, 389, 840 N.Y.S.2d 430; Costello v. Reilly, 36 A.D.3d 581, 581, 828 N.Y.S.2d 172; Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 A.D.3d at 625, 804 N.Y.S.2d 815;  London v. Iceland Inc., 306 A.D.2d 517, 517, 761 N.Y.S.2d 862).

Contact the Law Office of Richard Klass for further information about CPLR 3215.

– R. A. Klass
Your Court Street Lawyer


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Getting it Done: The Importance of Entering Timely Defaults

Painting by Giovanni Fattori that shows a man standing next to a horse which has collapsed on a road.
In 2004, a guy went out for a night of drinkin’ on the town. On the way home, he stopped in to one last bar to drink. At the bar, in a very drunk condition, he hit on a woman. After leaving the bar to go home, he saw standing by a nearby building a woman who he thought was the same one as the one in the bar. When the guy saw the woman on the street, thinking it was the one he saw in the bar, he grabbed and touched her. Unfortunately, it turned out that she was not the same woman—and she pressed charges of assault.
 
Naturally, the woman claiming assault not only sought criminal charges but also brought a civil action to recover damages from the guy. She brought the law suit against him through her lawyer in 2004. The defendant failed to answer the complaint after being served; however, her lawyer did not ask the judge to enter a default against the guy until 2006 – two years later. In support of the request for the default judgment, the lawyer stated that the woman had left New York to return to her native country because she was emotionally distraught over the assault and did not return until 2006. The judge granted a default judgment for the woman’s pain and suffering for $1,000,000.
 
The relevant New York statute governing default judgments, CPLR 3215, provides that, when a defendant has failed to appear in an action, the plaintiff may seek a default judgment against him. However, the plaintiff is required to do so within one year after the default, as required by subsection (c) thereof:
 
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.
 
According to the above subsection, the court should have dismissed the complaint as abandoned, based upon the woman’s failure to take proceedings for the entry of default within one year. Numerous cases have held that dismissal of the complaint is required when there has been a failure to take timely proceedings for entry of default. See,Saunders v. Central Brooklyn Coordinating Council, Inc., 273 AD2d 294 (2d Dept. 2000); PM-OK Associates v. Britz, 256 AD2d 151 (1st Dept. 1998).

Plaintiff must show a justifiable excuse

The Second Department held, in Winkelman v. H&S Beer and Soda Discounts Inc., 91 AD2d 660 (1982), that, absent a justifiable excuse and a showing that the action is meritorious, the plaintiff’s failure to enter a default judgment against the defendant within one year of the latter’s default mandates dismissal of the action against defendant as abandoned. In the affirmation of the woman’s attorney, he stated:
“That shortly after the Summons and Complaint was served, the Plaintiff, suffering from emotional stress and trauma based on the underlying assault and battery complained in this action, left the United States for her home country of Spain, as Defendant resided in the same neighborhood as Plaintiff, and Plaintiff, in fear of her safety and mental well-being, withdrew from the country.”
In Herzbrun v. Levine, 23 AD2d 744 (1st Dept. 1965), the Court held that the plaintiff’s excuse that she was forced to move to West Germany shortly after the action was commenced was not sufficient cause to excuse the failure to comply with the provisions of CPLR 3215. In Sortino v. Fisher, 20 AD2d 25, 30 (1st Dept. 1963), the court stated that “[T[he duty of prosecuting …. (an) action rests upon the (person) who brings it, not the (party) who defends it.” In that case, the court stated that “there is an intimate relationship between the merit of an action and the fact that it has been neglected.” This is the reason why an affidavit is needed because it must be “as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact.” As Justice Breitel wrote in the decision: “Given the delay, he has a double burden; to justify the delay and to lend credit to the proferred justification by establishing merit.” Further, “Even an action of great merit may be forfeited by prolonged delay. It is the right of a defendant to be free of a case which is not diligently prosecuted. For obvious reasons, it is very rare and quite perverse that an action of merit is not diligently prosecuted.” Richard A. Klass, Your Court Street Lawyer, brought a motion, termed an “Order to Show Cause,” to vacate the default judgment and dismiss the action. The motion stated that the excuse of the plaintiff for not entering the default within one year (that the woman suffered from emotional stress) had absolutely nothing to do with the requirement that her attorney should have moved for the default within one year since he proceeded on the Verified (or sworn) Complaint of his client and did not need any further sworn affidavits from her to obtain the default judgment. In response to the Order to Show Cause, the plaintiff capitulated and agreed to settle the ‘Million Dollar’ case for a mere $7,500 to avoid further litigation!
by Richard A. Klass, Esq.
 
©2007 Richard A. Klass. Art credits: page one, Bauer mit zusammengebrochenem Pferd by Giovanni Fattori.
———– copyr. 2011 Richard A. Klass, Esq. The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

R. A. Klass Your Court Street Lawyer

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