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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: December 22, 2020

Plaintiff Denied Default Judgment Because of Failure to Submit Evidence of Liability

On December 2, 2020, Justice Masley of the New York County Commercial Division issued a decision in 215 W. 28th St. Prop. Owner LLC v. Sibk Constr. Group LLC, 2020 NY Slip Op. 34045(U), denying a motion for default judgment because the plaintiff failed to submit adequate evidence of liability, explaining:

On a motion for a default judgment under CPLR 3215 based upon a failure to answer the complaint, a plaintiff demonstrates entitlement to a default judgment against a defendant by submitting: (1) proof of service of the summons and complaint; (2) proof of the facts constituting its claim; and (3) proof of the defendant’s default in answering or appearing.

Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action. The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts. CPLR 3215(f) requires a plaintiff to submit proof of the facts constituting the claim, the default and the amount due by affidavit. 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.

Here, plaintiffs have failed to satisfy this minimal standard. The amended complaint is not verified, and plaintiffs have not submitted an affidavit from a person who has knowledge of the facts supporting its claims. This is required in order for the court to deem the factual allegations of the amended complaint admitted and to examine whether the facts give rise to the causes of action alleged.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, or if you answer and do not appear at schedule court appearances, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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