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3215 - Default judgment.

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§3215. Default judgment. (a) Default and entry. When a defendant hasfailed to appear, plead or proceed to trial ofanactionreachedandcalledfortrial,orwhen the court orders a dismissal for any otherneglect to proceed, the plaintiff may seek adefaultjudgmentagainsthim.Iftheplaintiff'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,uponsubmissionoftherequisiteproof,shallenterjudgment 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 lessthanalldefendants,the clerk shall also enter an order severing theaction as to them. When a plaintiff has failed to proceed to trial of anaction reached andcalledfortrial,orwhenthecourtordersadismissalforanyotherneglecttoproceed, the defendant may makeapplication to the clerk within oneyearafterthedefaultandtheclerk,upon submission of the requisite proof, shall enter judgment forcosts. Where the case is not one in which the clerk can enterjudgment,the plaintiff shall apply to the court for judgment.(b)Procedurebeforecourt.The court, with or without a jury, maymake an assessment ortakeanaccountorproof,ormaydirectareference. When a reference is directed, the court may direct that thereport be returned to it for further action or, exceptwhereotherwiseprescribedbylaw, that judgment be entered by the clerk in accordancewith the report without any further application. Except in a matrimonialaction, no finding of fact in writing shall be necessary to the entry ofa judgment on default. The judgment shall not exceed in amount or differin type from that demanded in the complaintorstatedinthenoticeserved pursuant to subdivision (b) of rule 305.(c)Defaultnotenteredwithin one year. If the plaintiff fails totake proceedings for the entry of judgment withinoneyearafterthedefault,thecourtshallnotenterjudgmentbut shall dismiss thecomplaint as abandoned, without costs, upon itsowninitiativeoronmotion, unless sufficient cause is shown why the complaint should not bedismissed.Amotionbythe defendant under this subdivision does notconstitute an appearance in the action.(d) Multiple defendants. Whenever a defendant has answered and oneormoreother defendants have failed to appear, plead, or proceed to trialofanactionreachedandcalledfortrial,notwithstanding theprovisionsofsubdivision (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 entryofajudgmentor the making of an assessment, the taking of an account orproof, or the direction of a reference be conducted at thetimeoforfollowingthetrialorotherdispositionof 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 thecourtunderthissection may be made, except where otherwise prescribed by rules ofthe chief administrator of the courts, by motion at anytrialterminwhichthe action is triable or at any special term in which a motion inthe action could be made. Any reference shall be had inthecountyinwhich the action is triable, unless the court orders otherwise.(f)Proof.On any application for judgment by default, the applicantshall file proof of service of thesummonsandthecomplaint,orasummonsandnoticeservedpursuant to subdivision (b) of rule 305 orsubdivision (a) of rule 316 of this chapter,andproofofthefactsconstituting the claim, the default and the amount due by affidavit madebytheparty,orwherethestateof New York is the plaintiff, byaffidavit made by an attorney from the office oftheattorneygeneralwhohasorobtainsknowledgeofsuch facts through review of staterecords or otherwise. Where a verified complaint has been served, it maybeusedastheaffidavit of the facts constituting the claim and theamount due; in such case, an affidavit as to the default shallbemadebytheparty or the party's attorney. When jurisdiction is based on anattachment of property, theaffidavitmuststatethatanorderofattachmentgranted in the action has been levied on the property of thedefendant, describe the property and state its value. Proofofmailingthe notice requiredbysubdivision(g)ofthissection,whereapplicable, shall also be filed.(g) Notice. 1. Except as otherwise provided with respecttospecificactions,whenever application is made to the court or to the clerk, anydefendant who has appeared is entitled to at least five days' noticeofthetimeandplaceof 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 courtordersotherwise.Thecourtmaydispensewiththerequirementofnoticewhenadefendant who hasappeared has failed to proceed to trial of an action reached andcalledfor trial.2.Whereanapplication for judgment must be made to the court, thedefendant who has failed to appear may serve ontheplaintiffatanytime before the motion for judgment is heard a written demand for noticeofanyreferenceorassessment by a jury which may be granted on themotion. Such a demand does not constitute an appearance intheaction.Thereuponatleastfivedays'noticeofthe time and place of thereference or assessment by a jury shall be giventothedefendantbyserviceonthepersonwhose name is subscribed to the demand, in themanner prescribed for service of papers generally.3. (i) When a default judgmentbaseduponnonappearanceissoughtagainstanaturalpersoninanactionbasedupon nonpayment of acontractual obligation an affidavit shall be submittedthatadditionalnoticehasbeen given 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 placeofresidenceinanenvelope bearingthelegend"personalandconfidential"andnotindicating on the outside of the envelope that the communication is froman attorney or concerns an alleged debt. In the eventsuchmailingisreturnedasundeliverablebythepostoffice before the entry of adefault judgment, or if the placeofresidenceofthedefendantisunknown,acopy of the summons shall then be mailed in the same mannerto the defendant at the defendant's place ofemploymentifknown;ifneithertheplaceofresidencenortheplace of employment of thedefendant is known, then the mailing shall be to thedefendantathislast known residence.(ii)The additional notice may be mailed simultaneously with or afterservice of thesummonsonthedefendant.Anaffidavitofmailingpursuanttothis paragraph shall be executed by the person mailing thenotice and shall be filedwiththejudgment.Wheretherehasbeencompliancewiththerequirementsofthisparagraph, failure of thedefendant to receive the additional notice shall not preclude theentryof default judgment.(iii)Thisrequirementshall 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 torealproperty,exceptresidential mortgage foreclosure actions.4.(i)Whenadefault judgment based upon non-appearance is soughtagainst a domestic or authorizedforeigncorporationwhichhasbeenservedpursuanttoparagraph(b) of section three hundred six of thebusiness corporation law,anaffidavitshallbesubmittedthatanadditional 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)Theadditionalserviceofthesummonsbymail may be madesimultaneously with or after the service of the summons on the defendantcorporation pursuant to paragraph (b) of section threehundredsixofthebusinesscorporationlaw, and shall be accompanied by a notice tothe corporation that service is being made or has been made pursuanttothat provision. An affidavit of mailing pursuant to this paragraph shallbeexecutedbythe person mailing the summons and shall be filed withthe judgment. Where there has been compliance with therequirementsofthisparagraph,failureofthedefendant corporation to receive theadditional service of summons and notice provided for by thisparagraphshall not preclude the entry of default judgment.(iii)Thisrequirementshall not apply to cases in the small claimspart orcommercialclaimspartofanycourt,ortoanysummaryproceedingtorecoverpossessionofrealproperty,orto actionsaffecting title to real property.(h) Judgment for excess where counterclaim interposed.Inanactionupona contract where the complaint demands judgment for a sum of moneyonly, if the answer does not deny the plaintiff's claim butsetsupacounterclaimdemandinganamount less than the plaintiff's claim, theplaintiff upon filing with the clerk an admissionofthecounterclaimmay take judgment for the excess as upon a default.(i)Defaultjudgmentforfailuretocomplywithstipulation ofsettlement. 1. Where, after commencement of an action, a stipulationofsettlementismade,providing, in the event of failure to comply withthe stipulation, for entry without further notice ofajudgmentinaspecifiedamountwith interest, if any, from a date certain, the clerkshall enter judgment on the stipulationandanaffidavitastothefailure to comply with the terms thereof, together with a complaint or aconcise statement of the facts on which the claim was based.2. Where, after commencement of an action, a stipulation of settlementismade,providing,intheeventoffailuretocomplywith thestipulation, for entry without further notice of ajudgmentdismissingtheaction,theclerkshall enter judgment on the stipulation and anaffidavit as to the failure to comply with the termsthereof,togetherwiththepleadingsoraconcise statement of the facts on which theclaim and the defense were based.
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  • § 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.

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