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This entry was published on 2021-11-12
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SECTION 3215
Default judgment
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 32
§ 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 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. 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.

* NB Effective until May 7, 2022

* (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 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.

* NB Effective May 7, 2022

(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.

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.

* NB Effective May 7, 2022