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Current Developments in the Commercial Divisions of the
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Posted: February 24, 2017

Default Judgment Denied For Failure to Allege or Provide Facts Showing Liability

On February 10, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in BMG Rights Management (US) LLC v. Radar Pictures, Inc., 2017 NY Slip Op. 30290(U), denying without prejudice a motion for default judgment for failure to allege or provide facts showing liability, explaining:

CPLR 3215(a) authorizes the court to enter a default judgment against a party who fails to appear. The moving party must submit proof of service of process and affidavits attesting to the default and the facts constituting the claim. The evidentiary effect of a default is that the defendant is deemed to admit the traversable allegations in the complaint, including liability. Here, BMG’s motion is denied without prejudice with leave to renew upon submission of copies of the joint venture agreement and the amendment to it. Although BMG seeks breach of contract damages, it has not provided a copy of the applicable contract. The court cannot determine the breach of contract claim without a copy of the applicable contract documents. The court notes that BMG must establish a contractual relationship with each of the corporate defendants to obtain a default judgment against them.

(Internal citations omitted).

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