Key Takeaway
Learn why default judgments in NY declaratory judgment actions require non-hearsay evidence. Expert analysis of CPLR 3215 requirements from experienced attorneys.
Default judgments might seem like an easy path to victory in declaratory judgment actions involving staged accidents or coverage disputes, but a Nassau County case demonstrates that even unopposed cases require proper evidentiary foundations. When seeking declarations of non-coverage, insurance companies and their attorneys must navigate complex evidentiary requirements that can derail seemingly straightforward cases.
For personal injury attorneys and no-fault practitioners in Long Island and New York City, this case offers crucial insights into the evidence needed to secure favorable declaratory judgments and avoid costly appellate reversals.
A Case Study in Evidentiary Requirements
This is a most interesting case. I will discuss my thoughts in some detail because this case seems to possibly support the inference that a default judgment in a declaratory judgment involving a staged or non-loss may never be viable. I do not think that is the case at all. I also am not sure this case is consistent with the cases to which it cited.
The above being said – I was taught an early age that if you can do something to avoid a trip to the Appellate Division, despite what the correct view of the law is, then you should do what is necessary to avoid appellate intervention.
Consequently, how come Plaintiff never procured the affidavit of the adverse driver? This would have allowed a default to be entered. It also would have made complete sense since the investigator had contact with the adverse driver! This seems like a bout of doing the least to get the most – and getting burnt.
On to the case:
New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (2d Dept. 2010)
“The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff’s counsel, and an affidavit of the plaintiff’s investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff’s investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140).”
The issue of “personal knowledge” as set forth in 3215(f) has confused me for years.
Understanding CPLR 3215 and Personal Knowledge Requirements
The Foundation of Default Judgment Applications
CPLR 3215 governs the entry of default judgments in New York State courts. While many attorneys view default judgments as routine matters, the statute contains strict evidentiary requirements that must be satisfied even when defendants fail to respond. The personal knowledge requirement under CPLR 3215(f) demands that supporting affidavits be based on firsthand knowledge of the facts, not speculation, assumption, or hearsay.
Key requirements for default judgment applications:
- Proper service: Defendants must be properly served with process
- Default established: Failure to appear or answer within required time
- Liability proven: Even defaults require proof of plaintiff’s claim
- Damages calculated: Specific calculation of monetary or declaratory relief sought
- Personal knowledge: Supporting affidavits must be based on firsthand knowledge
The Strategic Misstep: Missing the Obvious Solution
Why Not Get the Adverse Driver’s Affidavit?
Jason Tenenbaum’s analysis highlights a critical strategic error: the plaintiff’s failure to obtain an affidavit directly from the adverse driver. If the investigator had contact with the other driver and obtained admissions about the staged nature of the accident, securing a sworn affidavit would have provided the personal knowledge needed for the default application.
Benefits of the adverse driver’s affidavit:
- Personal knowledge: Direct witness to the alleged staging
- Admissible evidence: Admissions against interest
- Strong foundation: Sworn testimony under penalty of perjury
- Appellate safety: Reduces risk of reversal on evidentiary grounds
The “Do the Least, Get the Most” Problem
This case exemplifies a common problem in legal practice: attempting shortcuts that ultimately create more work and expense. The insurance company’s attempt to secure a quick default judgment with inadequate evidence resulted in denial of the default application, appellate proceedings, ongoing litigation costs, and court criticism.
Implications for No-Fault and Insurance Practice
For insurance companies investigating potentially staged accidents throughout Nassau and Suffolk Counties, this case provides important guidance on evidence preservation and presentation. Best practices include securing sworn statements immediately, documenting investigator contacts, preserving evidence properly, using competent witnesses, and planning comprehensively for litigation.
Frequently Asked Questions
Q: Can default judgments ever be entered in staged accident cases?
A: Yes, but only with proper admissible evidence. The key is securing sworn affidavits from witnesses with personal knowledge of the staging, not relying on hearsay from investigators.
Q: What constitutes “personal knowledge” under CPLR 3215?
A: Personal knowledge means the affiant personally witnessed or participated in the events described. Secondhand information, summaries, or conclusions based on others’ statements don’t qualify.
Q: Should insurance companies always get adverse driver affidavits in staged accident cases?
A: When possible, yes. If investigators make contact with participants who admit to staging, securing sworn affidavits provides the strongest possible evidence for court proceedings.
The New Southern Insurance case serves as a crucial reminder that even default proceedings require careful attention to evidentiary requirements. The case demonstrates that strategic shortcuts often create more problems than they solve, and proper evidence gathering is essential to successful outcomes.
At the Law Office of Jason Tenenbaum, we understand the complex evidentiary requirements in insurance coverage disputes and no-fault litigation. Whether representing insurers seeking coverage determinations or claimants challenging improper denials, we focus on building cases with strong evidentiary foundations that can withstand appellate scrutiny.
If you’re dealing with insurance coverage disputes, no-fault denials, or complex evidentiary challenges, contact us today at 516-750-0595. Our experienced attorneys serve clients throughout Nassau County, Suffolk County, and the greater New York area. We understand both the substantive law and the procedural requirements that determine successful outcomes in insurance litigation.
Related Articles
- Proving intentional accidents requires proper police report admissibility
- When material misrepresentations require preponderance of evidence over intent
- Key elements in staged accident allegations for New York insurance claims
- Timely denial requirements for intentional act defenses in coverage disputes
- New York No-Fault Insurance Law
Legal Update (February 2026): Since 2010, CPLR 3215 and related default judgment procedures have been subject to amendments regarding notice requirements and proof standards. Additionally, evolving case law on evidentiary foundations in declaratory judgment actions may have modified the standards discussed in this post. Practitioners should verify current procedural requirements and recent appellate decisions when pursuing default judgments in coverage disputes.
