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.