Thursday, August 27, 2015

CPLR 3215 and a motion for a default judgment.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion for leave to enter a judgment on the issue of liability upon defendant's failure to appear or answer the complaint.

Plaintiff, in support of the motion, demonstrated entitlement to judgment on the issue of liability by submitting proof of service of the summons and complaint, the facts constituting the claim, and defendant's default in answering or appearing.

In opposing, defendant failed to demonstrate a potentially meritorious defense.  Defendant submitted a proposed answer which was verified only by its attorney, and an affirmation from an attorney who did not have personal knowledge of the facts.

Student note:  To demonstrate entitlement to relief under CPLR 3215(a), plaintiff must submit proof of service of the summons and complaint, the facts constituting the claim demonstrating a viable cause of action, and the defendants' default in answering or appearing, pursuant to CPLR 3215[f]. To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Case:  Vidal v. 452 Wyckoff Corp., NY Slip Op 06583 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to extend the time to serve process.