Clerk vs. Judge: Two Paths to Default Judgments in NY

What exactly is a “default” in law?

A “default” is “an omission, or a failure to do that which is anticipated, expected, or required in a given situation." (Legaldictionary.com).

Failing to answer a complaint or otherwise appear in a lawsuit is one way to default. Other ways a party can default are by a) failing to proceed to trial as ordered by the court; b) failing to comply with an order for disclosure; c) failing to pay a penalty as ordered by the court; and d) failing to plead pursuant to an order dismissing an action with leave to re-plead.

Does a default admit anything?

A default admits all factual allegations and all reasonable inferences drawn from a complaint.

However, a default does not admit legal conclusions reserved for the court's determination.[1] Therefore, the court is not required to grant motions indiscriminately based on defaults—even in cases with properly pled complaints.[2] The court retains the discretionary obligation to determine whether a plaintiff has met the burden of stating a prima facie case.[3]

What is a clerk’s judgment?

Entry of a judgment happens when the clerk of the court signs and files the judgment. Court clerks directly (without a judge) may enter a judgment if the complaint seeks a “sum certain.” Examples of such cases involve breach-of-contract and account-stated, pinpointing an exact sum due by computation. Assuming the plaintiff tenders the requisite proof under CPLR § 3215(f) (below), a judge is not needed to compute the sum certain and enter judgment for it.

What is required for a clerk’s judgment?

The two basic requirements for a clerk’s default judgment:

1. The application to the clerk must be made within one year after default; and
2. The claim is for a “sum certain” or for an amount that may be computed as certain.[4]

Even in cases alleging a “sum certain,” any attempt to secure a default judgment after one year of default requires a court order.

When entering a clerk’s judgment against fewer than all defendants, the clerk severs the action as against the remaining defendants.[5]

By the way, a clerk’s mistake or irregularity in entering a default judgment that is not related to jurisdiction is not void but “erroneous.”[6]

For more explanation about the “sum certain” requirement, see my prior blog, Smart Way to Attack your Creditor Default Judgment: The “Sum Certain” Element.

Can a defendant utilize a default judgment for anything?

A defendant may also take advantage of a clerk's judgment when a plaintiff unreasonably neglects to proceed or appear at trial. A defendant may apply to the clerk within one year after the plaintiff’s default, and the clerk, upon submission of the requisite proof, is required to enter judgment for costs. [7]

When and how do I apply to a Judge for a default judgment?

A plaintiff must “apply” to the court for judgment in cases requiring judicial discretion.[8] As stated above, any judgment not based on a “sum certain” requires a judge’s review.

The creditor must seek a default judgment within one year of default. Will my late answer waive my right to dismiss the case for its failure to do so?

If a creditor doesn't request its judgment within one year after an individual's missed response, that individual can request the court to dismiss the creditor’s complaint. However, some actions by the individual might forfeit this option.

Three Key Points:

1. A delayed answer and subsequent requests for further information might risk forfeiting the right to dismiss the complaint, particularly if the creditor interprets the tardy response as formal engagement in the case.
2. When the court rejects a creditor's attempt for an immediate win (default judgment) and the individual then responds, the right to challenge remains intact.
3. Seeking additional time to provide a response doesn’t equate to formal engagement in the process, hence maintaining the right to request a dismissal.

What Proof is Needed to Get a Default Judgment Ordered by a Judge?

1. Proof of service of the summons and complaint or summons with notice; and
2. Either: a) a verified complaint signed by a party (not the plaintiff’s attorney); or b) an affidavit[9] made by the party of the "facts constituting the claim," the default, and the amount due.[10]
3. Prima facie proof of a cause of action.[11]

A verified complaint may be used as the affidavit of the facts constituting the claim and the amount due. Still needed would be an affidavit as to the default made by the party or the party's attorney. Also note that a failure to file proof of the facts constituting the claim is not a jurisdictional defect, as would render a default judgment a nullity.[12]

Additional notice requirements are now mandated under the Consumer Credit Fairness Act. For more information about it, see 5 Powerful Lawsuit Defenses for New York Debtors in 2022. 

What other facts related to a default must a judge review?

Circumstances of a default that may involve weighing evidence include:

• failing to proceed to trial as ordered by the court;
• failing to comply with an order for disclosure;
• failing to pay a penalty as ordered by the court; or
• failing to plead pursuant to an order dismissing an action with leave to re-plead.

What Happens if You Break a Settlement Agreement in New York?

A bullet-point summary: CPLR § 3215. Default Judgment.

Default judgment scenarios in the event of a settlement breach:

• Specified Amount Judgment:
  • If a dispute is initiated and the settlement terms aren't met, judgment for a specific amount can be asserted without further notice.
  • The court clerk logs the judgment, breach specifics, the complaint, and the consumer debt interest rate when applicable.
• Dismissal Judgment:
  • Should a dispute arise and there's a stipulation for dismissal due to non-adherence, this judgment is recorded by the court clerk.
  • Documentation will include breach particulars, foundational pleadings, or a brief overview of the claim and defensive arguments.

• Pre-Oct. 30, 2023 Affidavit Prerequisites:
  • For the clerk to approve a default judgment, an affidavit from the plaintiff or their legal counsel is required.
  • This document should confirm that, upon careful investigation, the statute of limitations remains valid.
  • Standard affidavit formats for consumer credit scenarios are provided by the chief administrative judge.
• Post-Oct. 30, 2023 Affidavit Essentials:
  • The prerequisites mirror those prior to Oct. 30, 2023.
  • The chief administrative judge now offers affidavits catering to both consumer credit situations and cases related to medical debts.

Which New York Law Governs Default Judgments: CPLR § 3215

Below, I cut and pasted the entirety of CPLR § 3215. I have bolded language that is especially relevant to consumer-debt litigation, including language from the Consumer Credit Fairness Act of 2022.

Subsections (f), the extra proof needed in consumer-credit cases, and (g), notice requirements are particularly relevant to consumer debtors.

§ 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. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, properly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-examination. 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 of this chapter.

(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, including, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies, by affidavit made by the party, or where the state of New York is the plaintiff, by affidavit 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. In an action arising out of a consumer credit transaction, if the plaintiff is not the original creditor, the applicant shall include: (1) an affidavit by the original creditor of the facts constituting the debt, the default in payment, the sale or assignment of the debt, and the amount due at the time of sale or assignment; (2) for each subsequent assignment or sale of the debt to another entity, an affidavit of sale of the debt by the debt seller, completed by the seller or assignor; and (3) an affidavit of a witness of the plaintiff, which includes a chain of title of the debt, completed by the plaintiff or plaintiff's witness. The chief administrative judge shall issue form affidavits to satisfy the requirements of this subdivision for consumer credit transactions. 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 been served 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, and, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies.

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.

(j) Affidavit. A request for a default judgment entered by the clerk, must be accompanied by an affidavit by the plaintiff or plaintiff's attorney stating that after reasonable inquiry, he or she has reason to believe that the statute of limitations has not expired. The chief administrative judge shall issue form affidavits to satisfy the requirements of this subdivision for consumer credit transactions.

Case: Court of Appeals Holds Non-Compliance with CPLR 3215(f) in Default Judgment is Non-Jurisdictional

The New York Court of Appeals addressed whether failure to provide "proof of the facts constituting the claim" under CPLR 3215(f) when obtaining a default judgment is a jurisdictional defect. The court held that such non-compliance is not jurisdictional and does not render the default judgment a nullity.

Key Legal Principles:

1. Subject matter jurisdiction refers to objections that are "fundamental to the power of adjudication of a court," not merely the absence of elements of a cause of action.
2. A court's failure to comply with CPLR 3215(f) is an error that can be corrected through CPLR 5015, not a jurisdictional defect.
3. Non-jurisdictional defects in default judgments can be addressed through motions to vacate based on excusable default under CPLR 5015(a)(1).

Conclusion: The main takeaway is that failure to provide sufficient proof under CPLR 3215(f) when obtaining a default judgment is a correctable error, not a jurisdictional defect that automatically voids the judgment. This ruling resolves a split among Appellate Division departments and clarifies the narrow interpretation of jurisdictional defects in default judgments.

Citation: Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 991 NE2d 687 (2013).

Conclusion

Understanding default judgments, legal processes, and the Consumer Credit Fairness Act is crucial for informed decision-making in consumer debt litigation. Responding promptly and appropriately to garnishment notices or default judgment applications is vital. Seek professional legal advice immediately if confronted with these situations.