N.Y. CPLR § 3215

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 3215 Default judgment § 3215. Default judgment. (a) Default and entry. When a defendant hasfailed to appear, plead or proceed to trial of an action reached andcalled for trial, or when the court orders a dismissal for any otherneglect to proceed, the plaintiff may seek a default judgment againsthim. If the plaintiff's claim is for a sum certain or for a sum whichcan by computation be made certain, application may be made to the clerkwithin one year after the default. The clerk, upon submission of therequisite proof, shall enter judgment for the amount demanded in thecomplaint or stated in the notice served pursuant to subdivision (b) ofrule 305, plus costs and interest. Upon entering a judgment against lessthan all defendants, the clerk shall also enter an order severing theaction as to them. When a plaintiff has failed to proceed to trial of anaction reached and called for trial, or when the court orders adismissal for any other neglect to proceed, the defendant may makeapplication to the clerk within one year after the default and theclerk, upon submission of the requisite proof, shall enter judgment forcosts. 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, maymake an assessment or take an account or proof, or may direct areference. 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 itwill appear at the inquest, the party seeking damages may submit anysuch proof by oral testimony of the witnesses in open court or, afte f the defaulting party gives reasonable notice that itwill appear at the inquest, the party seeking damages may submit anysuch proof by oral testimony of the witnesses in open court or, aftergiving reasonable notice that it will do so, by written sworn statementsof the witnesses, but shall make all such witnesses available forcross-examination. When a reference is directed, the court may directthat the report be returned to it for further action or, except whereotherwise prescribed by law, that judgment be entered by the clerk inaccordance with the report without any further application. Except in amatrimonial action, no finding of fact in writing shall be necessary tothe entry of a judgment on default. The judgment shall not exceed inamount or differ in type from that demanded in the complaint or statedin the notice served pursuant to subdivision (b) of rule 305 of thischapter.(c) Default not entered within one year. If the plaintiff fails totake proceedings for the entry of judgment within one year after thedefault, the court shall not enter judgment but shall dismiss thecomplaint as abandoned, without costs, upon its own initiative or onmotion, unless sufficient cause is shown why the complaint should not bedismissed. A motion by the defendant under this subdivision does notconstitute an appearance in the action.(d) Multiple defendants. Whenever a defendant has answered and one ormore other defendants have failed to appear, plead, or proceed to trialof an action reached and called for trial, notwithstanding theprovisions of subdivision (c) of this section, upon application to thecourt within one year after the default of any such defendant, the courtmay enter an ex parte order directing that proceedings for the entry ofa judgment or the making of an assessment, the taking of an account orproof, or the direction of a reference be conducted at the time of orfollowing the ing that proceedings for the entry ofa judgment or the making of an assessment, the taking of an account orproof, or the direction of a reference be conducted at the time of orfollowing the trial or other disposition of the action against thedefendant who has answered. Such order shall be served on the defaultingdefendant in such manner as shall be directed by the court.(e) Place of application to court. An application to the court underthis section may be made, except where otherwise prescribed by rules ofthe chief administrator of the courts, by motion at any trial term inwhich the action is triable or at any special term in which a motion inthe action could be made. Any reference shall be had in the county inwhich the action is triable, unless the court orders otherwise.(f) Proof. On any application for judgment by default, the --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only applicantshall file proof of service of the summons and the complaint, or asummons and notice served pursuant to subdivision (b) of rule 305 orsubdivision (a) of rule 316 of this chapter, and proof of the factsconstituting the claim, the default and the amount due, including, ifapplicable, a statement that the interest rate for consumer debtpursuant to section five thousand four of this chapter applies, byaffidavit made by the party, or where the state of New York is theplaintiff, by affidavit made by an attorney from the office of theattorney general who has or obtains knowledge of such facts throughreview of state records or otherwise. Where a verified complaint hasbeen served, it may be used as the affidavit of the facts constitutingthe claim and the amount due; in such case, an affidavit as to thedefault shall be made by the party or the party's attorney. In an actionarising out of a consumer credit transaction, if the plaintiff is notthe o nt due; in such case, an affidavit as to thedefault shall be made by the party or the party's attorney. In an actionarising out of a consumer credit transaction, if the plaintiff is notthe original creditor, the applicant shall include: (1) an affidavit bythe original creditor of the facts constituting the debt, the default inpayment, the sale or assignment of the debt, and the amount due at thetime of sale or assignment; (2) for each subsequent assignment or saleof the debt to another entity, an affidavit of sale of the debt by thedebt seller, completed by the seller or assignor; and (3) an affidavit ofa witness of the plaintiff, which includes a chain of title of the debt,completed by the plaintiff or plaintiff's witness. In an actionarising from medical debt, if the plaintiff is not a hospital licensedunder article twenty-eight of the public health law or a health careprofessional authorized under title eight of the education law, theapplicant shall include: (1) an affidavit by the hospital or health careprofessional of the facts constituting the medical debt, the default inpayment, the sale or assignment of the medical debt, and the amount dueat the time of sale or assignment; (2) for each subsequent assignment orsale of the medical debt to another entity, an affidavit of sale of themedical debt by the debt seller, completed by the seller or assignor;and (3) an affidavit of a witness of the plaintiff, which includes achain of title of the medical debt, completed by the plaintiff orplaintiff's witness. The chief administrative judge shall issue formaffidavits to satisfy the requirements of this subdivision for consumercredit transactions and actions arising from medical debt. Whenjurisdiction is based on an attachment of property, the affidavit muststate that an order of attachment granted in the action has been leviedon the property of the defendant, describe the prope isdiction is based on an attachment of property, the affidavit muststate that an order of attachment granted in the action has been leviedon the property of the defendant, describe the property and state itsvalue. Proof of mailing the notice required by subdivision (g) of thissection, where applicable, shall also be filed.(g) Notice. 1. Except as otherwise provided with respect to specificactions, whenever application is made to the court or to the clerk, anydefendant who has appeared is entitled to at least five days' notice ofthe time and place of the application, and if more than one year haselapsed since the default any defendant who has not appeared is entitledto the same notice unless the court orders otherwise. The court maydispense with the requirement of notice when a defendant who hasappeared has failed to proceed to trial of an action reached and calledfor trial.2. Where an application for judgment must be made to the court, thedefendant who has failed to appear may serve on the plaintiff at anytime before the motion for judgment is heard a written demand for noticeof any reference or assessment by a jury which may be granted on themotion. Such a demand does not constitute an appearance in the action.Thereupon at least five days' notice of the time and place of thereference or assessment by a jury shall be given to the defendant byservice on the person whose name is subscribed to the demand, in themanner prescribed for service of papers generally.3. (i) When a default judgment based upon nonappearance is soughtagainst a natural person in an action based upon nonpayment of acontractual obligation an affidavit shall be submitted that additionalnotice has been given CPLR § 3215 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only by or on behalf of the plaintiff at least twentydays before the entry § 3215 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only by or on behalf of the plaintiff at least twentydays before the entry of such judgment, by mailing a copy of the summonsby first-class mail to the defendant at his place of residence in anenvelope bearing the legend "personal and confidential" and notindicating on the outside of the envelope that the communication is froman attorney or concerns an alleged debt. In the event such mailing isreturned as undeliverable by the post office before the entry of adefault judgment, or if the place of residence of the defendant isunknown, a copy of the summons shall then be mailed in the same mannerto the defendant at the defendant's place of employment if known; ifneither the place of residence nor the place of employment of thedefendant is known, then the mailing shall be to the defendant at hislast known residence.(ii) The additional notice may be mailed simultaneously with or afterservice of the summons on the defendant. An affidavit of mailingpursuant to this paragraph shall be executed by the person mailing thenotice and shall be filed with the judgment. Where there has beencompliance with the requirements of this paragraph, failure of thedefendant to receive the additional notice shall not preclude the entryof default judgment.(iii) This requirement shall not apply to cases in the small claimspart of any court, or to any summary proceeding to recover possession ofreal property, or to actions affecting title to real property, exceptresidential mortgage foreclosure actions.4. (i) When a default judgment based upon non-appearance is soughtagainst a domestic or authorized foreign corporation which has beenserved pursuant to paragraph (b) of section three hundred six of thebusiness corporation law, an affidavit shall be submitted that anadditional service of the corporation which has beenserved pursuant to paragraph (b) of section three hundred six of thebusiness corporation law, an affidavit shall be submitted that anadditional service of the summons by first class mail has been made uponthe defendant corporation at its last known address at least twenty daysbefore the entry of judgment.(ii) The additional service of the summons by mail may be madesimultaneously with or after the service of the summons on the defendantcorporation pursuant to paragraph (b) of section three hundred six ofthe business corporation law, and shall be accompanied by a notice tothe corporation that service is being made or has been made pursuant tothat provision. An affidavit of mailing pursuant to this paragraph shallbe executed by the person mailing the summons and shall be filed withthe judgment. Where there has been compliance with the requirements ofthis paragraph, failure of the defendant corporation to receive theadditional service of summons and notice provided for by this paragraphshall not preclude the entry of default judgment.(iii) This requirement shall not apply to cases in the small claimspart or commercial claims part of any court, or to any summaryproceeding to recover possession of real property, or to actionsaffecting title to real property.(h) Judgment for excess where counterclaim interposed. In an actionupon a contract where the complaint demands judgment for a sum of moneyonly, if the answer does not deny the plaintiff's claim but sets up acounterclaim demanding an amount less than the plaintiff's claim, theplaintiff upon filing with the clerk an admission of the counterclaimmay take judgment for the excess as upon a default.(i) Default judgment for failure to comply with stipulation ofsettlement. 1. Where, after commencement of an action, a stipulation ofsettlement is made, providing, in the event of failure to comply withth dgment for failure to comply with stipulation ofsettlement. 1. Where, after commencement of an action, a stipulation ofsettlement is made, providing, in the event of failure to comply withthe stipulation, for entry without further notice of a judgment in aspecified amount with interest, if any, from a date certain, the clerkshall enter judgment on the stipulation and an affidavit as to thefailure to comply with the terms thereof, together with a complaint or aconcise statement of the facts on which the claim was based, and, ifapplicable, a statement that the interest rate for consumer debtpursuant to section five thousand four of this chapter applies.2. Where, after commencement of an action, a stipulation of settlementis made, providing, in the event of failure to comply with thestipulation, for entry without further notice of a judgment dismissingthe action, the clerk shall enter judgment on the stipulation and anaffidavit as to the failure to comply with the terms thereof, togetherwith the pleadings or a concise statement of the facts on which theclaim 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'sattorney stating that after reasonable inquiry, he or she has reason tobelieve that the statute of limitations has not expired. The chiefadministrative judge shall issue form affidavits to satisfy therequirements of this subdivision for consumer credit transactions andactions arising CPLR § 3215 Page 3 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only from medical debt. 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