Defaults againJune 18, 2010

If you remember, the Appellate Term and Appellate Division has been beginning, in no-fault cases, to require the movant of a default judgment to offer proof, somewhat similar to that necessary to prevail on a summary judgment motion, in order to take a default.

Gerdes v Canales, 2010 NY Slip Op 05358 (2d Dept. 2010)

In this personal injury case, the Supreme Court allowed entry of a default based upon the Plaintiff driver rear-ending the Defendant.  For those of you who read this and are unfamiliar with certain aspects of automobile negligence litigation, the rule is simple.  An unexplained rear-end collision raises a presumption of negligence on the part of the rear-ending vehicle.  Thus, under the new rules where the proof in support of a default has to be somewhat similar to that of a summary judgment motion, the Supreme Court should not have granted leave to enter a default judgment.

The Appellate Division reversed.  But, here is where the rub is.  They reversed – not on the ground that the proof presented was insufficient, in the first instance to allow leave to enter a default judgment. Rather, they reversed on the typical 5015(a)(1) grounds.

This is troubling, but nothing surprises me anymore in the world of litigation.  I think this may be DG’s next foray into a law journal article.

One Response

  1. The Appellate Division wouldn’t have reversed on the ground that the proof was insufficient. That issue was never before it. The defendants couldn’t have appealed from the default order. Instead, they had to move to vacate the default. When the motion to vacate was denied, they appealed, and the only issue before the Court was whether the order denying vacatur was correct. Had the lower court refused the default and the plaintiff appealed, who knows what the Appellate Division would have done. I doubt that it would do what the Appellate Term did, but you never know.

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