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.
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.
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 , “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.
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