HSBC Bank USA, N.A. v Wielgus, 2015 NY Slip Op 06494 (2d Dept. 2015)
The role of the clerk’s judgment diminished a tad bit. I was leery of posting this because it is somewhat groundbreaking, well hidden and something you would have to dig up. Yet, after some thought, I figured that it should not be too easy to enter defaults following non-payment of settlement stipulations.
“However, the Kings County Clerk did not have authority to enter a clerk’s judgment against Wielgus pursuant to CPLR 3215(i)(1). This statute states, in relevant part, that “[w]here . . . a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment in a specified amount, . . . the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with a complaint or a concise statement of the facts on which the claim was based” (CPLR 3215[i][1] [emphasis added]). Although the stipulation provided that HSBC could enter a money judgment against Wielgus in the event of a default, it permitted entry of such a judgment only “upon ten (10) days notice” to Wielgus. Thus, the stipulation was not one which provided for entry of a judgment upon default “without further notice.” Moreover, the stipulation did not provide for entry of a judgment “in a specified amount.” Rather, it provided that the judgment to be entered upon Wielgus’s default would be calculated so as to “credit [Wielgus] for all payments made on account.” The stipulation thus did not specify the exact principal sum of the judgment that HSBC would have the right to enter based on a default by Wielgus under the stipulation; rather, it provided for a formula that required reference to extrinsic proof as to exactly how much Wielgus might have already paid to HSBC prior to the default, or prior to the judgment. Accordingly, the entry of a clerk’s judgment was not authorized by CPLR 3215(i)(1).”
