Commercial Division Blog

Posted: June 27, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Categories Default Judgment, Commercial, Court Rules/Procedures

Attorney Affirmation Made Upon Information and Belief Cannot Support Motion for Default Judgment

On May 10, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Stanziale v. Perlson, 2022 N.Y. Slip Op. 31528(U), holding that an attorney's affirmation was insufficient to support a motion for default judgment when many of the allegations in the affirmation were based on information and belief, explaining:

A "judgment can only be entered upon submission of the requisite proof. Such proof must include proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it [*2] may be used as the affidavit of the facts constituting the claim and the amount due." (Chase Manhattan Bank (N.A.) v Evergreen Steel Corp., 91 AD2d 539, 539, 457 N.Y.S.2d 11 [1st Dept 1982] [internal quotation marks and citations omitted].) Where plaintiff's counsel has personal knowledge of the facts constituting the action, a complaint verified by counsel is typically a sufficient affidavit of merits to support a 3215 motion. (State Farm Mutual Auto. Ins. Co. v Rodriguez, 12 AD3d 662, 663, 784 N.Y.S.2d 875 [2d Dept 2004] [citations omitted].) However, counsel must "set forth the basis of counsel's personal knowledge of the facts asserted therein." (A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp., 6 Misc 3d 53, 54, 791 N.Y.S.2d 264 [App Term 2004] [citations omitted].) Further, when the allegations supporting the claim are solely on upon information and belief, the default motion shall be denied. (Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228, 662 N.Y.S.2d 19 [1st Dept 1997].)

Here, the complaint, which ultimately seeks to enforce a judgment in an underlying action, is verified by plaintiff's counsel, who affirms that "I have read the foregoing Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe to be true. The reason this verification is made by me and not by plaintiff is that the plaintiff lacks personal knowledge of the contents [**3] thereof." (NYSCEF 2, Verified Complaint at 37.) While the court does not doubt [*3] that plaintiff's counsel has personal knowledge of some of the facts based on his involvement in the underlying action, many of the allegations are upon information and belief or are conclusory.

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Thus, the court cannot grant a default judgment on that claim.

When a defendant does not respond to a complaint, the plaintiff is entitled to entry of a default judgment. But the C.P.L.R. requires the plaintiff to submit an affidavit of the facts constituting the claim, and if the plaintiff cannot do this, the motion for a default judgment will be denied. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning moving for entry of a default judgment.