BlogLitigationFAQs About Defaulting Defendants

September 25, 2019by Jeffrey Davis0

A lawsuit is commenced by filing and then serving a Summons and Complaint. The Defendant then has 20 days to serve an Answer (30 days if they were not personally served).

But what happens if someone doesn’t Answer the Summons and Complaint? Well, in New York the applicable statute that deals with defaults is as follows

CPLR§3215(a) states: “(a) Default and entry. When a Defendant has failed to appear, plead or proceed to trial of an action… 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 service pursuant to subdivision (b) of rule 305, plus costs and interest…”

So, pursuant to CPLR 3215, if the Defendant does not appear or Answer the Complaint in time, you can file a Motion for a Default Judgment. As part of that motion you have to file proof of service of the summons and complaint or a summons with the notice and provide an affidavit showing the facts of the claim, the default, and the amount due. See CPLR §3215; see also Freccia v. Carullo, 93 A.D.2d 281, 462 N.Y.S.2d 38 (2d Dep’t 1983); Levi v. Oberlander, 144 A.D.2d 546 (2d Dept. 1988).

So, this means that if you are seeking a default judgment because the Defendant did not respond in time, you will have to file proof of service of the Summons and Complaint, and you’ll need an Affidavit of Merit setting forth in detail the basis for your claim and the basis for your damages.

In addition to the above, CPLR 3215 also requires a few other things:

  1. Pursuant to CPLR §3215(g)(4) you as the Plaintiff will have to mailing an additional copy of the Summons and Complaint upon the defaulting Defendant.
  2. Pursuant to CPLR §3215(g)(3) you as the Plaintiff must also serve upon the defaulting Defendant an additional copy of the Summons and Complaint enclosed in a first class postpaid wrapper marked ”personal and confidential” and properly addressed to said defaulting Defendant.

Once you’ve filed your motion for a default judgment, the time for you to receive a decision from the Court will vary depending on the county where the court is located and the judge.

Assuming you receive a favorable decision, you will either (1) have to go to Court for an inquest hearing which is sort of a mini-trial without the defendant where the judge hears testimony and reviews exhibits supporting your specific claim for damages, or (2) you will receive a decision which grants you the specific damages you are seeking.

In order to convert this Decision into a judgment you will then, following whatever other direction the Court gives you, file a proposed judgment. Once you receive an approved signed Judgment in your favor, you can then take steps to enforce that Judgment (which is another topic of discussion altogether).

CPLR 3215 has its nuances so consulting with an attorney is absolutely highly recommended.

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