Cary v Cimino, 2015 NY Slip Op 03965 (4th Dept. 2015)
I understood the recent Court of Appeals case on this issue (I forgot the name) to preclude a review of the merits of the proof of the default when a trial level court enters a default judgment. Here, the Appellate Division is allowing a challenge to the entry of a default on 3215(f) grounds where a party is opposing the entry of the default. Parenthetically, this should only encourage more ex-parte applications to the Court where a Clerk’s judgment is inapplicable; however, local practice for some strange reason requires that the default application be made on notice. In parts of upstate New York, you actually get in trouble for moving on notice for the entry of a default.
“We agree with defendants that plaintiff failed to establish his entitlement to a default judgment. Plaintiff’s submissions in support of his motion included, inter alia, his own affidavit and the complaint, but his affidavit did not demonstrate personal knowledge of the incident, and the complaint was not verified. We therefore conclude that plaintiff failed to submit adequate “proof of the facts constituting the claim” (CPLR 3215 [f]; see Williams v North Shore LIJ Health Sys., 119 AD3d 937, 938; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651; see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71)”
