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New York Civil Practice Law & Rules - Article 32 - § 3215 Default Judgment

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Civil Practice Law and Rules
 
    §  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.   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.
    (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 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. 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.
    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.
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Last modified: February 15, 2014