Todd v Green, 2014 NY Slip Op 08004 (2d Dept. 2014)
Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant. (shameless self promotion)
“The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.”
” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, quoting Beaton v Transit Facility Corp., 14 AD3d 637, 637). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]; U.S. Bank N.A. v Poku, 118 AD3d 980; U.S. Bank N.A. v Razon, 115 AD3d at 740; Dela Cruz v Keter Residence, LLC, 115 AD3d 700). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980). Although the Supreme Court [*2]found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121 AD3d 349; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960; Fredette v Town of Southampton, 95 AD3d 940, 942). Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf (see Midfirst Bank v Agho, 121 AD3d 349).
The moral of the story is to take a stand when you think the Court is treating you like a no-fault defendant in Civil Kings, Special Term. The appellate courts sometimes get it right.
4 Responses
hmmmm I wonder in whose name the auto insurance policy was written?
This is yet another demonstration that the Courts are ….; that accept …, that rewrite the CPLR so that they can accept …– all at the behest of monied interests. The legislature could give a damn about their laws being rewritten because they are waiting on the same line to accept their payoffs as the Courts.
And the Governor stopped the corruption probe because he got paid.
And at the very root of it all is the unwashed, ignorant masses of degenerate citizens that allow themselves to be unceremoniously sodomized.
I want to see you all die even if I am burning to death during the viewing.
much like many of the default judgments taken this too is wrong on the underlying law
isnt agreeing to get a lease for someone an agreement to act as a surety and doesnt that agreement to act as a surety for another require a writing to be enforceable?
By its very terms an automobile lease cannot be completed within a year so doesn’t an agreement that cannot be completed within a year require a writing;
In friggin practical terms the Defendant is a dead beat. Good luck collecting. Global warming will destroy humanity before your client sees a dime.
And I want to watch you all die of extreme weather even if I have to watch it from the vortex of a an F-5 twister.