2023 New York Laws › CVP - Civil Practice Law and Rules › Article 32 - Accelerated Judgment › 3215 - Default Judgment.

§  3215. Default judgment. (a) Default and entry. When a defendant has
failed to appear, plead or proceed to trial of  an  action  reached  and
called  for  trial,  or  when the court orders a dismissal for any other
neglect to proceed, the plaintiff may seek a  default  judgment  against
him.  If  the  plaintiff's claim is for a sum certain or for a sum which
can by computation be made certain, application may be made to the clerk
within one year after the default. The clerk,  upon  submission  of  the
requisite  proof,  shall  enter  judgment for the amount demanded in the
complaint or stated in the notice served pursuant to subdivision (b)  of
rule 305, plus costs and interest. Upon entering a judgment against less
than  all  defendants,  the clerk shall also enter an order severing the
action as to them. When a plaintiff has failed to proceed to trial of an
action reached and  called  for  trial,  or  when  the  court  orders  a
dismissal  for  any  other  neglect  to  proceed, the defendant may make
application to the clerk within one  year  after  the  default  and  the
clerk,  upon submission of the requisite proof, shall enter judgment for
costs. Where the case is not one in which the clerk can enter  judgment,
the plaintiff shall apply to the court for judgment.
(b)  Procedure  before  court.  The court, with or without a jury, may
make an assessment or  take  an  account  or  proof,  or  may  direct  a
reference.    The party entitled to judgment may be permitted to submit,
in addition to the proof required by subdivision (f)  of  this  section,
properly  executed  affidavits  or  affirmations  as  proof  of damages,
provided that if the defaulting party gives reasonable  notice  that  it
will  appear  at  the  inquest, the party seeking damages may submit any
such proof by oral testimony of the witnesses in open  court  or,  after
giving reasonable notice that it will do so, by written sworn statements
of  the  witnesses,  but  shall  make  all  such witnesses available for
cross-examination. When a reference is directed, the  court  may  direct
that  the  report  be returned to it for further action or, except where
otherwise prescribed by law, that judgment be entered by  the  clerk  in
accordance  with the report without any further application. Except in a
matrimonial action, no finding of fact in writing shall be necessary  to
the  entry  of  a  judgment on default. The judgment shall not exceed in
amount or differ in type from that demanded in the complaint  or  stated
in  the  notice  served  pursuant to subdivision (b) of rule 305 of this
chapter.
(c) Default not entered within one year. If  the  plaintiff  fails  to
take  proceedings  for  the  entry of judgment within one year after the
default, the court shall  not  enter  judgment  but  shall  dismiss  the
complaint  as  abandoned,  without  costs, upon its own initiative or on
motion, unless sufficient cause is shown why the complaint should not be
dismissed. A motion by the defendant under  this  subdivision  does  not
constitute an appearance in the action.
(d)  Multiple defendants. Whenever a defendant has answered and one or
more other defendants have failed to appear, plead, or proceed to  trial
of   an  action  reached  and  called  for  trial,  notwithstanding  the
provisions of subdivision (c) of this section, upon application  to  the
court within one year after the default of any such defendant, the court
may  enter an ex parte order directing that proceedings for the entry of
a judgment or the making of an assessment, the taking of an  account  or
proof,  or  the  direction of a reference be conducted at the time of or
following the trial or other  disposition  of  the  action  against  the
defendant who has answered. Such order shall be served on the defaulting
defendant in such manner as shall be directed by the court.
(e)  Place  of application to court. An application to the court under
this section may be made, except where otherwise prescribed by rules  of
the  chief  administrator  of the courts, by motion at any trial term in

which the action is triable or at any special term in which a motion  in
the  action  could  be made. Any reference shall be had in the county in
which the action is triable, unless the court orders otherwise.
(f)  Proof.  On any application for judgment by default, the applicant
shall file proof of service of the  summons  and  the  complaint,  or  a
summons  and  notice  served  pursuant to subdivision (b) of rule 305 or
subdivision (a) of rule 316 of this chapter,  and  proof  of  the  facts
constituting  the  claim,  the default and the amount due, including, if
applicable, a  statement  that  the  interest  rate  for  consumer  debt
pursuant  to  section  five  thousand  four  of this chapter applies, by
affidavit made by the party, or where the  state  of  New  York  is  the
plaintiff,  by  affidavit  made  by  an  attorney from the office of the
attorney general who has or obtains  knowledge  of  such  facts  through
review  of  state  records  or otherwise. Where a verified complaint has
been served, it may be used as the affidavit of the  facts  constituting
the  claim  and  the  amount  due;  in such case, an affidavit as to the
default shall be made by the party or the party's attorney. In an action
arising out of a consumer credit transaction, if the  plaintiff  is  not
the  original creditor, the applicant shall include: (1) an affidavit by
the original creditor of the facts constituting the debt, the default in
payment, the sale or assignment of the debt, and the amount due  at  the
time  of  sale or assignment; (2) for each subsequent assignment or sale
of the debt to another entity, an affidavit of sale of the debt  by  the
debt  seller,  completed by the seller or assignor; and (3) an affidavit
of a witness of the plaintiff, which includes a chain of  title  of  the
debt,  completed  by  the plaintiff or plaintiff's witness. In an action
arising from medical debt, if the plaintiff is not a  hospital  licensed
under  article  twenty-eight  of  the public health law or a health care
professional authorized under title eight  of  the  education  law,  the
applicant shall include: (1) an affidavit by the hospital or health care
professional  of the facts constituting the medical debt, the default in
payment, the sale or assignment of the medical debt, and the amount  due
at the time of sale or assignment; (2) for each subsequent assignment or
sale  of the medical debt to another entity, an affidavit of sale of the
medical debt by the debt seller, completed by the  seller  or  assignor;
and  (3)  an  affidavit  of a witness of the plaintiff, which includes a
chain of title of the  medical  debt,  completed  by  the  plaintiff  or
plaintiff's  witness.  The  chief  administrative judge shall issue form
affidavits to satisfy the requirements of this subdivision for  consumer
credit   transactions  and  actions  arising  from  medical  debt.  When
jurisdiction is based on an attachment of property, the  affidavit  must
state  that an order of attachment granted in the action has been levied
on the property of the defendant, describe the property  and  state  its
value.  Proof  of mailing the notice required by subdivision (g) of this
section, where applicable, shall also be filed.
(g) Notice. 1. Except as otherwise provided with respect  to  specific
actions,  whenever application is made to the court or to the clerk, any
defendant who has appeared is entitled to at least five days' notice  of
the  time  and  place  of the application, and if more than one year has
elapsed since the default any defendant who has not appeared is entitled
to the same notice unless the court  orders  otherwise.  The  court  may
dispense  with  the  requirement  of  notice  when  a  defendant who has
appeared has failed to proceed to trial of an action reached and  called
for trial.
2.  Where  an  application for judgment must be made to the court, the
defendant who has failed to appear may serve on  the  plaintiff  at  any
time before the motion for judgment is heard a written demand for notice
of  any  reference  or  assessment by a jury which may be granted on the

motion. Such a demand does not constitute an appearance in  the  action.
Thereupon  at  least  five  days'  notice  of  the time and place of the
reference or assessment by a jury shall be given  to  the  defendant  by
service  on  the  person  whose name is subscribed to the demand, in the
manner prescribed for service of papers generally.
3. (i) When a default judgment  based  upon  nonappearance  is  sought
against  a  natural  person  in  an  action  based  upon nonpayment of a
contractual obligation an affidavit shall be submitted  that  additional
notice  has  been given by or on behalf of the plaintiff at least twenty
days before the entry of such judgment, by mailing a copy of the summons
by first-class mail to the defendant at his place  of  residence  in  an
envelope   bearing  the  legend  "personal  and  confidential"  and  not
indicating on the outside of the envelope that the communication is from
an attorney or concerns an alleged debt. In the event  such  mailing  is
returned  as  undeliverable  by  the  post  office before the entry of a
default judgment, or if the place  of  residence  of  the  defendant  is
unknown,  a  copy of the summons shall then be mailed in the same manner
to the defendant at the defendant's place of  employment  if  known;  if
neither  the  place  of  residence  nor  the  place of employment of the
defendant is known, then the mailing shall be to the  defendant  at  his
last known residence.
(ii)  The additional notice may be mailed simultaneously with or after
service of the  summons  on  the  defendant.  An  affidavit  of  mailing
pursuant  to  this paragraph shall be executed by the person mailing the
notice and shall be filed  with  the  judgment.  Where  there  has  been
compliance  with  the  requirements  of  this  paragraph, failure of the
defendant to receive the additional notice shall not preclude the  entry
of default judgment.
(iii)  This  requirement  shall not apply to cases in the small claims
part of any court, or to any summary proceeding to recover possession of
real property, or to actions affecting title to  real  property,  except
residential mortgage foreclosure actions.
4.  (i)  When  a  default judgment based upon non-appearance is sought
against a domestic or authorized  foreign  corporation  which  has  been
served  pursuant  to  paragraph  (b) of section three hundred six of the
business corporation law,  an  affidavit  shall  be  submitted  that  an
additional service of the summons by first class mail has been made upon
the defendant corporation at its last known address at least twenty days
before the entry of judgment.
(ii)  The  additional  service  of  the  summons  by  mail may be made
simultaneously with or after the service of the summons on the defendant
corporation pursuant to paragraph (b) of section three  hundred  six  of
the  business  corporation  law, and shall be accompanied by a notice to
the corporation that service is being made or has been made pursuant  to
that provision. An affidavit of mailing pursuant to this paragraph shall
be  executed  by  the person mailing the summons and shall be filed with
the judgment. Where there has been compliance with the  requirements  of
this  paragraph,  failure  of  the  defendant corporation to receive the
additional service of summons and notice provided for by this  paragraph
shall not preclude the entry of default judgment.
(iii)  This  requirement  shall not apply to cases in the small claims
part or  commercial  claims  part  of  any  court,  or  to  any  summary
proceeding  to  recover  possession  of  real  property,  or  to actions
affecting title to real property.
(h) Judgment for excess where counterclaim interposed.  In  an  action
upon  a contract where the complaint demands judgment for a sum of money
only, if the answer does not deny the plaintiff's claim but  sets  up  a
counterclaim  demanding  an  amount less than the plaintiff's claim, the

plaintiff upon filing with the clerk an admission  of  the  counterclaim
may take judgment for the excess as upon a default.
(i)  Default  judgment  for  failure  to  comply  with  stipulation of
settlement. 1. Where, after commencement of an action, 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  with interest, if any, from a date certain, 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, and, if
applicable, a  statement  that  the  interest  rate  for  consumer  debt
pursuant to section five thousand four of this chapter applies.
2. Where, after commencement of an action, 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  dismissing
the  action,  the  clerk  shall enter judgment on the stipulation and an
affidavit as to the failure to comply with the terms  thereof,  together
with  the  pleadings  or  a  concise statement of the facts on which the
claim and the defense were based.
(j) Affidavit. A request for a default judgment entered by the  clerk,
must  be  accompanied  by  an  affidavit by the plaintiff or plaintiff's
attorney stating that after reasonable inquiry, he or she has reason  to
believe  that  the  statute  of  limitations  has not expired. The chief
administrative  judge  shall  issue  form  affidavits  to  satisfy   the
requirements  of  this  subdivision for consumer credit transactions and
actions arising from medical debt.