Manhattan Telecom. Corp. v H & A Locksmith, Inc., 2013 NY Slip Op 03867 (2013)
“On November 5, 2009, Vanunu moved to vacate the judgment, asserting that his default was excusable and that he had meritorious defenses to the action. Supreme Court denied the motion, finding that Vanunu’s delay in defending himself was not excusable. The Appellate Division reversed without reaching the issue of excusable default, holding that because “plaintiff failed to provide . . . evidence that [Vanunu] was personally liable for the stated claims . . . . the default judgment was a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 82 AD3d 674 [1st Dept 2011]). The Appellate Division granted leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative, and reverse.”
“The defect in the default judgment before us is not jurisdictional in this sense. A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error — it has not usurped a power it does not have. The error can be corrected by the means provided by law — i.e., by an application for relief from the judgment pursuant to CPLR 5015. It does not justify treating the judgment as a nullity.”
This will be interesting to watch play out. Does the failure to comply with CPLR 3215(f) implicate the meritorious defense branch of CPLR 5015(a)(1), provided that a reasonable excuse is established? This will insulate clerk’s judgments that do not comply 3215(f) where a reasonable excuse is not found on the subsequent 5015(a)(1) motion.
Eagle Surgical Supply, Inc. v QBE Ins. Co., 2011 NY Slip Op 51455(U)(App. Term 2d Dept., 2011)
“In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 ; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 ; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).”
What I find interesting is that the court did not deny leave to enter a default outright.
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.
Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 2010 NY Slip Op 50889(U)(App. Term 2d Dept. 2010)
“The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.
In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 ; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).”
It is a motion to enter a default. The non-answering party admits all traversable allegations. A bill was sent, it is overdue. Assuming that a business record foundation is necessary to establish a prima facie case, the failure to object to this “defect” renders it waived. A default renders the defect waived.
Yet, even if a business record foundation is non-waivable, this “defect” is conceded through the failure to timely answer, appear or otherwise move.
So the court is way off on this one, similar to the decision in New South Insurance, where we (the defense bar) were told that it is easier for us to obtain a jury verdict on a contested staged accident case, then it is to obtain a default judgment in the same case.
Here is the real question, and I asked this one after New South Insurance was decided: why the heck was this appealed? Actually, this question is better: how come Plaintiff did not enter a clerk’s judgment, and sought to enter a default on notice?