Commercial Division Blog

Posted: June 19, 2019 / Categories Commercial, Default Judgment

Court Denies Default Judgment for Lack of Evidence Supporting Plaintiff's Claim

On June 6, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Stone & Broad Inc. v. Nextel of N.Y., Inc., 2019 NY Slip Op. 31600(U), denying a motion for default judgment for lack of evidence supporting the plaintiff's claims, explaining:

In this motion, plaintiff seeks a default judgment in that entire amount against defendants Benjamin-Park, Inc., Guliano-Park 88 Broad Street, Inc., Robert Park and Kui Sun Park ("the Defaulting Defendants"). Plaintiff has adequately established service of the Summons and Complaint on these parties and the failure of any of those defendants to answer. However, plaintiff has failed to establish that it served the moving papers or that it is entitled to a judgment for liability or damages against the Defaulting Defendants.

The procedure for obtaining a default judgment is governed by CPLR 3215. Pursuant to CPLR 3215(f), the application for a judgment by default must be accompanied proof of the facts constituting the claim, the default and the amount due by affidavit made by the party. However, plaintiff has failed to provide any affidavit from an individual with personal knowledge, nor even a Verified Complaint. The sole support is the Affirmation from counsel, which merely documents the service of the Summons and Complaint on the Defaulting Defendants and their failure to answer. The papers do not even recite the background facts set forth at the beginning of this opinion; the Court relied on its March 1, 2019 decision granting a motion to dismiss by other defendants for that information.

Based on the lack of proof, the Court is compelled to deny the motion without prejudice. The Complaint asserts four causes of action, some of which apply to all defendants and some of which apply only to some of the defendants. Plaintiff has failed to indicate the claims on which it is relying for relief. Further, some of the causes of action are based in contract, but no contract has been provided. Nor has plaintiff provided the stipulation in the underlying action, any documentation of its right to attorney's fees, or any proof of the amount claimed and its reasonableness. Further, many of the causes of action suffer from the same infirmities the Court discussed in its March 1 decision, but plaintiff has not explained how, if at all, the claims against the Defaulting Defendants escape the infirmities previously found by the Court.

(Internal quotations omitted).

If you are served with a complaint and fail timely to answer, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.