Some people have heard the Japanese kōan “What is the sound of one hand clapping?,” attributed to the Japanese Zen Buddhist Hakuin Ekaku. Well, what is the sound of one party litigating? A default judgment.
When a plaintiff sues and the defendant doesn’t respond, the plaintiff is entitled to a “default judgment.” When the plaintiff is suing for a specific dollar amount, like when suing on a promissory note, the clerk can enter judgment without much else. But, “[w]here the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment.” CPLR 3215(a). At least in Westchester County’s Commercial Division, this is no mere formality. A decision on a motion for default judgment written by Justice Alan Scheinkman, former Commercial Division Justice and Administrative Justice for the Ninth Judicial District (and now Presiding Justice for the Second Department), illustrates the point.
In Shadow Tree Income Fund A LP v. RMP Capital Corp., Index No. 67627/2016, four of the defendants failed to answer the Complaint. The plaintiffs moved for a default judgment against those defendants and supported the motion with affidavits and exhibits proving not only the default, but also the defaulting defendants’ liability. This was the right way to go.
As Justice Scheinkman explained: “Default judgments are not to be rubber-stamped once jurisdiction and failure to appear are shown.” Instead, the plaintiff has work to do. “Proof must still be submitted to satisfy the Court, at least prima facie, as to the viability of the uncontested cause of action.” Justice Scheinkman then wrote a twenty-four page single-spaced decision describing in detail the plaintiffs’ allegations and the elements of each claim. Justice Scheinkman then determined that the plaintiffs had, indeed, submitted satisfactory proof of their claims entitling them to a judgment against the defaulting defendants.
More recently, on May 7, 2019, Justice Jamieson denied a motion for default judgment, without prejudice to the plaintiff filing a new motion “supported by an affidavit of a party, explaining exactly how they calculate damages.” Coleman v. JRABS Development Corp, Index No. 70352/2017. On May 23, 2019, Justice Jamieson denied a motion for default judgment, without prejudice, “for the sole reason that plaintiffs mention that defendant has had two conservators appointed for him, although he does not have one now. Plaintiffs fail to explain to the Court what the circumstances are that required a conservator, and whether the situation has changed. The Court cannot grant a default motion under these circumstances.” Gundelach v. Gundelach, Index No. 57885/2018.
Unquestionably, those seeking a default judgment in Westchester County’s Commercial Division would be well-advised to assemble their proof and be prepared to explain their entitlement to judgment as a matter of law. The Court will not rubber-stamp a request for a default judgment.
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