§ 3215 — Default judgment

New York § 3215

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 32: Accelerated Judgment

Text

§ 3215. Default judgment. (a) Default and entry. When a defendant has\nfailed to appear, plead or proceed to trial of an action reached and\ncalled for trial, or when the court orders a dismissal for any other\nneglect to proceed, the plaintiff may seek a default judgment against\nhim. If the plaintiff's claim is for a sum certain or for a sum which\ncan by computation be made certain, application may be made to the clerk\nwithin one year after the default. The clerk, upon submission of the\nrequisite proof, shall enter judgment for the amount demanded in the\ncomplaint or stated in the notice served pursuant to subdivision (b) of\nrule 305, plus costs and interest. Upon entering a judgment against less\nthan all defendants, the clerk shall also enter an order severing the\naction as to them. When a plaintiff has failed to proceed to trial of an\naction reached and called for trial, or when the court orders a\ndismissal for any other neglect to proceed, the defendant may make\napplication to the clerk within one year after the default and the\nclerk, upon submission of the requisite proof, shall enter judgment for\ncosts. Where the case is not one in which the clerk can enter judgment,\nthe plaintiff shall apply to the court for judgment.\n (b) Procedure before court. The court, with or without a jury, may\nmake an assessment or take an account or proof, or may direct a\nreference. The party entitled to judgment may be permitted to submit,\nin addition to the proof required by subdivision (f) of this section,\nproperly executed affidavits or affirmations as proof of damages,\nprovided that if the defaulting party gives reasonable notice that it\nwill appear at the inquest, the party seeking damages may submit any\nsuch proof by oral testimony of the witnesses in open court or, after\ngiving reasonable notice that it will do so, by written sworn statements\nof the witnesses, but shall make all such witnesses available for\ncross-examination. When a reference is directed, the court may direct\nthat the report be returned to it for further action or, except where\notherwise prescribed by law, that judgment be entered by the clerk in\naccordance with the report without any further application. Except in a\nmatrimonial action, no finding of fact in writing shall be necessary to\nthe entry of a judgment on default. The judgment shall not exceed in\namount or differ in type from that demanded in the complaint or stated\nin the notice served pursuant to subdivision (b) of rule 305 of this\nchapter.\n (c) Default not entered within one year. If the plaintiff fails to\ntake proceedings for the entry of judgment within one year after the\ndefault, the court shall not enter judgment but shall dismiss the\ncomplaint as abandoned, without costs, upon its own initiative or on\nmotion, unless sufficient cause is shown why the complaint should not be\ndismissed. A motion by the defendant under this subdivision does not\nconstitute an appearance in the action.\n (d) Multiple defendants. Whenever a defendant has answered and one or\nmore other defendants have failed to appear, plead, or proceed to trial\nof an action reached and called for trial, notwithstanding the\nprovisions of subdivision (c) of this section, upon application to the\ncourt within one year after the default of any such defendant, the court\nmay enter an ex parte order directing that proceedings for the entry of\na judgment or the making of an assessment, the taking of an account or\nproof, or the direction of a reference be conducted at the time of or\nfollowing the trial or other disposition of the action against the\ndefendant who has answered. Such order shall be served on the defaulting\ndefendant in such manner as shall be directed by the court.\n (e) Place of application to court. An application to the court under\nthis section may be made, except where otherwise prescribed by rules of\nthe chief administrator of the courts, by motion at any trial term in\nwhich the action is triable or at any special term in which a motion in\nthe action could be made. Any reference shall be had in the county in\nwhich the action is triable, unless the court orders otherwise.\n (f) Proof. On any application for judgment by default, the applicant\nshall file proof of service of the summons and the complaint, or a\nsummons and notice served pursuant to subdivision (b) of rule 305 or\nsubdivision (a) of rule 316 of this chapter, and proof of the facts\nconstituting the claim, the default and the amount due, including, if\napplicable, a statement that the interest rate for consumer debt\npursuant to section five thousand four of this chapter applies, by\naffidavit made by the party, or where the state of New York is the\nplaintiff, by affidavit made by an attorney from the office of the\nattorney general who has or obtains knowledge of such facts through\nreview of state records or otherwise. Where a verified complaint has\nbeen served, it may be used as the affidavit of the facts constituting\nthe claim and the amount due; in such case, an affidavit as to the\ndefault shall be made by the party or the party's attorney. In an action\narising out of a consumer credit transaction, if the plaintiff is not\nthe original creditor, the applicant shall include: (1) an affidavit by\nthe original creditor of the facts constituting the debt, the default in\npayment, the sale or assignment of the debt, and the amount due at the\ntime of sale or assignment; (2) for each subsequent assignment or sale\nof the debt to another entity, an affidavit of sale of the debt by the\ndebt seller, completed by the seller or assignor; and (3) an affidavit\nof a witness of the plaintiff, which includes a chain of title of the\ndebt, completed by the plaintiff or plaintiff's witness. In an action\narising from medical debt, if the plaintiff is not a hospital licensed\nunder article twenty-eight of the public health law or a health care\nprofessional authorized under title eight of the education law, the\napplicant shall include: (1) an affidavit by the hospital or health care\nprofessional of the facts constituting the medical debt, the default in\npayment, the sale or assignment of the medical debt, and the amount due\nat the time of sale or assignment; (2) for each subsequent assignment or\nsale of the medical debt to another entity, an affidavit of sale of the\nmedical debt by the debt seller, completed by the seller or assignor;\nand (3) an affidavit of a witness of the plaintiff, which includes a\nchain of title of the medical debt, completed by the plaintiff or\nplaintiff's witness. The chief administrative judge shall issue form\naffidavits to satisfy the requirements of this subdivision for consumer\ncredit transactions and actions arising from medical debt. When\njurisdiction is based on an attachment of property, the affidavit must\nstate that an order of attachment granted in the action has been levied\non the property of the defendant, describe the property and state its\nvalue. Proof of mailing the notice required by subdivision (g) of this\nsection, where applicable, shall also be filed.\n (g) Notice. 1. Except as otherwise provided with respect to specific\nactions, whenever application is made to the court or to the clerk, any\ndefendant who has appeared is entitled to at least five days' notice of\nthe time and place of the application, and if more than one year has\nelapsed since the default any defendant who has not appeared is entitled\nto the same notice unless the court orders otherwise. The court may\ndispense with the requirement of notice when a defendant who has\nappeared has failed to proceed to trial of an action reached and called\nfor trial.\n 2. Where an application for judgment must be made to the court, the\ndefendant who has failed to appear may serve on the plaintiff at any\ntime before the motion for judgment is heard a written demand for notice\nof any reference or assessment by a jury which may be granted on the\nmotion. Such a demand does not constitute an appearance in the action.\nThereupon at least five days' notice of the time and place of the\nreference or assessment by a jury shall be given to the defendant by\nservice on the person whose name is subscribed to the demand, in the\nmanner prescribed for service of papers generally.\n 3. (i) When a default judgment based upon nonappearance is sought\nagainst a natural person in an action based upon nonpayment of a\ncontractual obligation an affidavit shall be submitted that additional\nnotice has been given by or on behalf of the plaintiff at least twenty\ndays before the entry of such judgment, by mailing a copy of the summons\nby first-class mail to the defendant at his place of residence in an\nenvelope bearing the legend "personal and confidential" and not\nindicating on the outside of the envelope that the communication is from\nan attorney or concerns an alleged debt. In the event such mailing is\nreturned as undeliverable by the post office before the entry of a\ndefault judgment, or if the place of residence of the defendant is\nunknown, a copy of the summons shall then be mailed in the same manner\nto the defendant at the defendant's place of employment if known; if\nneither the place of residence nor the place of employment of the\ndefendant is known, then the mailing shall be to the defendant at his\nlast known residence.\n (ii) The additional notice may be mailed simultaneously with or after\nservice of the summons on the defendant. An affidavit of mailing\npursuant to this paragraph shall be executed by the person mailing the\nnotice and shall be filed with the judgment. Where there has been\ncompliance with the requirements of this paragraph, failure of the\ndefendant to receive the additional notice shall not preclude the entry\nof default judgment.\n (iii) This requirement shall not apply to cases in the small claims\npart of any court, or to any summary proceeding to recover possession of\nreal property, or to actions affecting title to real property, except\nresidential mortgage foreclosure actions.\n 4. (i) When a default judgment based upon non-appearance is sought\nagainst a domestic or authorized foreign corporation which has been\nserved pursuant to paragraph (b) of section three hundred six of the\nbusiness corporation law, an affidavit shall be submitted that an\nadditional service of the summons by first class mail has been made upon\nthe defendant corporation at its last known address at least twenty days\nbefore the entry of judgment.\n (ii) The additional service of the summons by mail may be made\nsimultaneously with or after the service of the summons on the defendant\ncorporation pursuant to paragraph (b) of section three hundred six of\nthe business corporation law, and shall be accompanied by a notice to\nthe corporation that service is being made or has been made pursuant to\nthat provision. An affidavit of mailing pursuant to this paragraph shall\nbe executed by the person mailing the summons and shall be filed with\nthe judgment. Where there has been compliance with the requirements of\nthis paragraph, failure of the defendant corporation to receive the\nadditional service of summons and notice provided for by this paragraph\nshall not preclude the entry of default judgment.\n (iii) This requirement shall not apply to cases in the small claims\npart or commercial claims part of any court, or to any summary\nproceeding to recover possession of real property, or to actions\naffecting title to real property.\n (h) Judgment for excess where counterclaim interposed. In an action\nupon a contract where the complaint demands judgment for a sum of money\nonly, if the answer does not deny the plaintiff's claim but sets up a\ncounterclaim demanding an amount less than the plaintiff's claim, the\nplaintiff upon filing with the clerk an admission of the counterclaim\nmay take judgment for the excess as upon a default.\n (i) Default judgment for failure to comply with stipulation of\nsettlement. 1. Where, after commencement of an action, a stipulation of\nsettlement is made, providing, in the event of failure to comply with\nthe stipulation, for entry without further notice of a judgment in a\nspecified amount with interest, if any, from a date certain, the clerk\nshall enter judgment on the stipulation and an affidavit as to the\nfailure to comply with the terms thereof, together with a complaint or a\nconcise statement of the facts on which the claim was based, and, if\napplicable, a statement that the interest rate for consumer debt\npursuant to section five thousand four of this chapter applies.\n 2. Where, after commencement of an action, a stipulation of settlement\nis made, providing, in the event of failure to comply with the\nstipulation, for entry without further notice of a judgment dismissing\nthe action, the clerk shall enter judgment on the stipulation and an\naffidavit as to the failure to comply with the terms thereof, together\nwith the pleadings or a concise statement of the facts on which the\nclaim and the defense were based.\n (j) Affidavit. A request for a default judgment entered by the clerk,\nmust be accompanied by an affidavit by the plaintiff or plaintiff's\nattorney stating that after reasonable inquiry, he or she has reason to\nbelieve that the statute of limitations has not expired. The chief\nadministrative judge shall issue form affidavits to satisfy the\nrequirements of this subdivision for consumer credit transactions and\nactions arising from medical debt.\n