Key Takeaway
First Department ruling creates conflict over whether meritorious defense affidavits are required when seeking to vacate default judgments in New York courts.
First Department Creates Circuit Split on Default Judgment Requirements
The landscape of default judgment law in New York has become increasingly complex, with different appellate departments taking conflicting approaches to fundamental procedural requirements. A recent First Department decision highlights a significant disagreement among New York’s appellate courts regarding whether defendants must demonstrate a meritorious defense when seeking to vacate default judgments.
This procedural question has far-reaching implications for both plaintiffs and defendants in commercial litigation. While some courts require detailed affidavits showing potential defenses, others take a more lenient approach that focuses on different factors entirely. The variation in requirements can significantly impact litigation strategy and case outcomes, particularly in construction and contract disputes where defaults are frequently sought.
Jason Tenenbaum’s Analysis:
Naber Elec. v Triton Structural Concrete, Inc., 2018 NY Slip Op 02562 (1st Dept. 2018)
“Although the affidavit of merit provided by defendants’ executive lacked any detail concerning their potential defenses to plaintiffs’ claims for payment for work performed on three subcontracts, an affidavit of merit is “not essential to the relief sought” by defendants before entry of a default order or judgment (DeMarco v Wyndham Intl., 299 AD2d 209, 209 ; see Nason v Fisher, 309 AD2d 526 )”
The Court of Appeals should resolve this conflict. The other Departments hold that a meritorious defense is needed. The Second Circuit on construing Rule 55 after a clerks marking of default holds the same. Also, the way around this is to enter an ex-parte judgment on liability, which is something that downstate Courts frown upon unless it is a sum certain matter.
Key Takeaway
The First Department’s lenient approach to meritorious defense requirements conflicts with other appellate departments and federal courts, creating uncertainty in default judgment practice. This split in authority underscores the need for Court of Appeals clarification and affects strategic decisions about when and how to seek default relief in New York litigation.
