A nullity or not? The status of a default judgment entered absent compliance with CPLR 3215(f).
Default judgments are an integral part of civil practice. Attractive because they provide parties with the spoils of successful litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. Without the hassle of actually litigating controversies, default judgments are a desired commodity. (1) CPLRCPLR Civil Practice Law Rules (New York)
..... Click the link for more information. 3215 establishes the procedure that a plaintiff (2) must follow to procure a default judgment; one component of the plaintiffs application for a default judgment is "proof ... of the facts constituting the claim." (3) What if the plaintiff seeking the default judgment fails to submit proof of the facts of its claim, but a default judgment is nonetheless rendered against the defaulting defendant? Is that judgment void and therefore a nullity.
nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.
nullity. , allowing the defendant to have it vacated at any time simply on request? Or, can the plaintiffs failure to submit proof of the facts of its claim be overlooked?
Whether a plaintiffs failure to submit sufficient proof of its claim on its application for a default judgment renders the judgment a nullity has important consequences in practice, yet this issue is unsettled: A split exists among the departments of the appellate division as to whether a default judgment entered in the absence of proof of the claim is a nullity, and the Court of Appeals has yet squarely to resolve the point. This article reviews the default judgment statute; examines the requirement that a plaintiff submit proof of the facts of its claim; and surveys the case law regarding the consequences of a plaintiffs failure to submit sufficient proof of its claim.
I. CPLR 3215--THE DEFAULT JUDGMENT STATUTE
CPLR 3215 permits a plaintiff to seek a default judgment against a defaulting defendant, (4) but requires the plaintiff to do so within one year of the default. (5) Where "the plaintiffs claim is for a sum certain or for a sum which can by computation be made certain," the plaintiffs application for a default judgment may be made to the clerk of the court. (6) Only a narrow class of claims may be submitted to the clerk. In this regard, the statute contemplates "a situation in which ... there can be no dispute as to the amount due, as in actions on money judgments and negotiable NEGOTIABLE. That which is capable of being transferred by assignment; a thing, the title to which may be transferred by a sale and indorsement or delivery.
2. instruments." (7) Thus, causes of action seeking unliquidated Unassessed or settled; not ascertained in amount.
An unliquidated debt, for example, is one for which the precise amount owed cannot be determined from the terms of the contractual agreement or another standard.
DAMAGES, UNLIQUIDATED. damages--such as torts (8)--or equitable relief (9) do not fall within that reserved class. If the complaint (or summons with notice) asserts any claim other than one for a "sum certain," the plaintiffs application for a default judgment must be made to the court. (10)
The plaintiff must, regardless of the type of claim involved, submit the following on its application for a default judgment: (1) proof of service of the initiatory in•i•ti•a•to•ry
initiatory - serving to set in motion; "the magazine's inaugural issue"; "the initiative phase in the negotiations"; "an initiatory step toward a treaty"; "his first (or maiden) speech in Congress"; "the liner's maiden voyage"
adj.
1. Introductory; initial.
2. Tending or used to initiate.
Adj. 1. initiatory papers on the defendant; (2) "proof of the facts constituting the claim" and, if damages are sought, the amount due; and (3) proof of the default. (11) As to items one and three, the process server's affidavit.
Written statement made voluntarily, confirmed by the oath or affirmation of the party making it, and signed before an officer empowered to administer such oaths demonstrates proof of service of the summons and complaint or summons with notice, (12) and the proof of the default should be supplied by the plaintiffs attorney because the attorney, rather than the client, generally has firsthand knowledge of the default. (13)
As to item two, proof of the claim must be supplied by someone with personal knowledge of the facts underlying the claim. (14) The individual providing the firsthand factual account of the claim should submit an affidavit (or, where appropriate, an affirmation) (15) that, along with any other evidence submitted in support of the application for the default judgment, demonstrates "enough facts to enable a court to determine that a viable cause of action exists." (16) Stated differently, the plaintiff must provide firsthand confirmation of facts establishing each element of the claim and make a prima facie [Latin, On the first appearance.] A fact presumed to be true unless it is disproved.
In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. showing that the defaulting defendant is liable. (17) In gauging the sufficiency of the plaintiffs proof on an application for a default judgment, the court must keep in mind that (1) where the defendant defaulted in appearing or answering the action, the plaintiff has not had the benefit of discovery, and (2) "defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them." (18) Where the plaintiff commenced the action using a complaint that the plaintiff itself verified, that pleading can serve as an affidavit. (19) Beware of a complaint verified by the plaintiffs attorney. Unless the attorney has firsthand knowledge of the facts underlying the claim, which the attorney rarely will have, a complaint verified by the attorney is generally inadequate to establish proof of the claim. (20)
Default judgments are sometimes rendered absent compliance with CPLR 3215(f), i.e., a plaintiff occasionally obtains a default judgment against a defendant despite the absence of sufficient proof of the facts of the plaintiff's claim. A determination as to whether a plaintiff has adduced (adduce to cite (reasons, examples, etc.) as evidence or proof) sufficient proof of its claim involves the exercise of legal judgment and judicial discretion. (21) Thus, where a default judgment is rendered on a claim for a "sum certain" by the clerk, who has no authority to perform judicial functions, (22) the sufficiency of the facts of the claim will not have been determined prior to entry of the judgment. (23) Where the claim does not involve a "sum certain" and the application is addressed to the court, the court can (and should) review the sufficiency of the plaintiffs evidence regarding the proof of the claim before granting an application for a default judgment. (24) To be sure, when the application for a default judgment is addressed to the court, the entry of the judgment is not a ministerial act (ministerial act n. an act, particularly of a governmental employee, which is performed according to statutes, legal authority, established procedures or instructions from a superior, without exercising any individual judgment.) , (25) and the court must avoid the temptation to merely rubber stamp a proposed default judgment. (26) Sometimes, however, a court will misgauge the sufficiency of the proof (or not gauge it at all) and render a default judgment on a claim that the plaintiff failed to show was viable. (27) Thus, regardless of whether the clerk or the court granted the application for the default judgment, the question of whether the plaintiff demonstrated sufficient proof of its claim may not be settled by entry of the default judgment.
II. CONSEQUENCES OF ABSENCE OF PROOF OF THE CLAIM
Where a default judgment is entered despite the plaintiff's failure to submit sufficient evidence demonstrating the proof of its claim, a critical question arises: Does the plaintiffs failure to submit that evidence render the judgment void (and thus a nullity) or merely voidable That which is not absolutely void, but may be avoided.
In contracts, voidable is a term typically used with respect to a contract that is valid and binding unless avoided or declared void by a party to the contract who is legitimately exercising a power to avoid the ? If the judgment is void, the defendant can seek to have it vacated at any time without having to make the standard two-part showing for vacating a default judgment on the ground of excusable neglect excusable neglect n. (a legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an answer to a complaint) on time.) under CPLR 5015(a)(1) (28)--a reasonable excuse for the default and a potentially meritorious mer•i•to•ri•ous
adj.
Deserving reward or praise; having merit. [Middle English, from Latin merit defense. (29) If the judgment is not void, however, the defendant must move under CPLR 5015(a)(1) to vacate To annul, set aside, or render void; to surrender possession or occupancy.
The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. the judgment, and will be put to the task of making an evidentiary ev•i•den•tia•ry
adj. Law
1. Of evidence; evidential.
2. For the presentation or determination of evidence: an evidentiary hearing.
Adj. 1. showing to have the judgment vacated. Note, too, that a defendant seeking relief under CPLR 5015(a)(1) is generally constrained con•strain
tr.v. con•strained, con•strain•ing, con•strains
1. To compel by physical, moral, or circumstantial force; oblige: felt constrained to object. See Synonyms at force.
2. to do so within one year after service upon that party of a copy of the judgment with written notice of entry. (30)
The Court of Appeals has yet to address directly whether a default judgment entered despite the plaintiffs failure to comply with CPLR 3215(f) is a nullity. (31) Thus, a defendant against whom a default judgment has been entered must consult the law of the department of the appellate division in which the default judgment was entered when preparing its motion to vacate the judgment.
For the complete report see: "A nullity or not? The status of a default judgment entered absent compliance with CPLR 3215(f)."
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