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State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Cvp > Article-32 > 3215

§  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, byaffidavit 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  beenserved  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.