§ 3215.Default judgment.

The former provisions governing default judgments were disorganized, repetitious and confusing. The approach adopted in this section is to simplify and reorganize the former provisions into seven basic subdivisions, as well as to make some changes of substance in the treatment of defaults. The subdivisions are: (a) the definition of default and the distinction between those defaults which may be entered by the clerk and those requiring application to the court; (b) procedure before the court; (c) treatment of defaults not entered within one year; (d) place of application to the court; (e) proof; (f) notice; and (g) application to counterclaims. The rules proposed by the 1915 Board of Statutory Consolidation and those of the Committee on Court Rules of the Association of the Bar of the City of New York in 1933 were substantially the same as the former default judgment provisions. See 1 Report of the Board of Statutory Consolidation on the Simplification of the Civil Practice of New York, rules 299– 304 (1915); Committee of Court Rules, Special Report on the Extension of the Rule-Making Power, rules 478– 493 (Association of the Bar of the City of New York 1933).

The first sentence of subd (a) of this section is new, but it is simply a statement of what under former law amounted to a default. It includes failure to appear or plead, formerly covered by CPA § 486, and failure to appear upon or proceed to trial, formerly covered by §§ 494-a and 433. Although default in proceeding to trial was thus governed by separate provisions under former law, this subdivision does not alter the effect of those provisions. Section 494-a provided that when a party failed to appear upon or proceed to trial, his pleadings should have been deemed abandoned and a default judgment might have been entered in the same manner as a default judgment for failure to appear or plead. Although the primary purpose of former § 433 was to provide the procedure for bringing an issue to trial, the last sentence authorized a party to proceed with a cause and seek a dismissal of the complaint or an appropriate verdict, decision or judgment when the adverse party was absent at the trial. Insofar as that sentence applied to default judgments it was unnecessary because former § 494-a outlined more fully the treatment of a defendant’s failure to appear for trial. The first sentence of this subdivision also provides that where the court finds that there has been a default because of any other failure to proceed—for example, a failure to comply with an order for disclosure pursuant to CPLR § 3126 (3)—default judgment may be entered in the manner provided for defaults in appearing, pleading or proceeding to trial. This subdivision contains an important change with respect to the types of default judgments which may be entered by the clerk. CPA § 486 authorized a clerk to enter default judgment only in actions in which the summons was served upon the defendant personally within the state or by substituted service pursuant to former §§ 230 and 231. This subdivision follows Federal rule 55 and New Jersey rule 4:56 insofar as they authorize the clerk to enter default judgment regardless of the type of service. The apparent purpose of the limitation in former § 486 was to protect the defendant who was served by publication or personally outside of the state by requiring that application be made to a judge or court. However, no extra protection was achieved by this requirement: proof of service by publication can be more easily made than proof of personal service and is equally trustworthy, and proof of personal service outside of the state is made in the same manner as proof of personal service within the state. The Judicial Council rejected a proposal to extend the authority of the clerk to enter judgment by default to cases of personal service on a domiciliary without the state on the ground that the issue of the defendant’s domicile is a jurisdictional question whose decision is for the court and not within the ministerial functions of the clerk. See 15 NY Jud Council Rep 315 (1949). However, the defaulting defendant served in this manner has notice of the proceedings and can appear to protest jurisdiction before the court; the situation is no different from that of a defendant served personally within the state who fails to appear to raise a jurisdictional point. Both are relegated to subsequent attack upon the judgment. RCP 192 and CPA § 493 were designed to afford additional protection where service was made otherwise than personally within the state or by substituted service. CPA § 493(1) is covered by this subd. CPA § 493(2) and subd 1, 2 and 4 of RCP 192 are covered by subd (e) of this section, the subdivision treating requirements of proof. RCP 192(3) is omitted from the new CPLR. See notes to subd (e) of this section. RCP 192(5), formerly Code of Civil Procedure § 1216 and originally § 246(3) of the 1849 code, authorized the court to require an undertaking from the plaintiff where service was made otherwise than personally within the state or by substituted service and defendant had not appeared.

This provision, which was rarely, if ever, employed, is omitted from the new CPLR. The requirement that the claim be one for a “sum certain or for a sum which can by computation be made certain” is taken from Federal rule 55(b) (1). However, the courts have interpreted CPA § 485 as having imposed the same requirement. See Hotel Syracuse v Brainard, 256 App Div 1055, 10 NYS2d 892 (4th Dep’t 1939); Tuttle v Smith, 14 How Pr 395 (NY Sup Ct 1857). The second sentence of CPA § 485, which dealt with partial payments, has been omitted because it pointed to an obvious result. The provision that if the clerk is not requested to enter a default within a year the application for judgment must be made to the court was formerly contained in CPA § 486. The limitation in CPA § 487, that the clerk must enter judgment for the amount demanded in the complaint or at the plaintiff’s option for a lesser sum, is continued in this section although the phrase “or at the plaintiff’s option for a smaller sum” has been dropped because it is not conceivable that the plaintiff would be prevented from doing this by the clerk. This section requires the clerk to enter judgment upon submission of the proof prescribed by subd (e). As under former law, the clerk is authorized to tax costs and make a computation of interest. CPA §§ 487, 1532. The last sentence provides that where the case is not one in which the clerk can enter judgment, application for a default judgment may be made to the court. CPA § 489 contained a similar provision. The third sentence of CPA 475, included in this subdivision, permits the clerk to sever the action upon entering a default judgment against less than all defendants. The subdivision permits the defendant to obtain a default judgment for costs in the event that plaintiff fails 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 provisions of subd (b) of this section concerning assessments and references are substantially the same as those in CPA § 490 but the term “writ of inquiry” has been dropped as no longer necessary.

The third sentence in this subdivision was formerly contained in RCP 191.

The last sentence provides that in case of a default, the relief granted shall not exceed in amount, or differ in type from, that demanded in the complaint. Federal rule 54(c) is the same. CPA § 479 formerly limited the relief to that demanded by the complaint only where there was no answer. However, it is believed that in making this change this subdivision conforms to the somewhat vaguely expressed intent of the original drafters of the section. See First Report of Commissioners on Practice and Pleadings § 231 and notes (1848); Clark, Code Pleading 268 (2d ed 1947); cf. 6 Moore, Federal Practice 1202–211 (1953). Policy considerations also compel the change. Whether the defendant defaults in answering or at a later stage in the proceedings, he defaults with the knowledge that the judgment will be limited by that demanded in the complaint.

The more general problem of the relief that might have been awarded when there was no default but the defendant lost on the merits was also covered by former § 479. It has been treated in the article on judgments in the new CPLR. See also CPLR § 3017.

Subd (c) of this section is substantially the same as RCP 302(1). Enacted in 1947 upon the recommendation of the Judicial Council, this rule was intended to prevent plaintiffs from unreasonably delaying the termination of an action. See 13 NY Jud Council Rep 215 (1947). Before it was enacted, a plaintiff could delay entering a default judgment indefinitely unless the court on its own motion dismissed the complaint for lack of prosecution. However, courts did not often exercise this inherent power, even in cases of excessive delay. The defendant could not move to dismiss the complaint for failure to prosecute under CPA § 181 because his default deprived him of any standing in the action, unless he first had the default opened. Defendants also frequently misconstrued a plaintiff’s inaction as a tacit abandonment of the claim.

Subd (d) of this section is a modification of RCP 191. Although that rule in terms applied only “on the failure of the defendant to answer,” there seems to be no reason why it should not have applied to defaults generally and it has been so extended. The place where the application may be made has not been changed. The phrase “any special term in which a motion in the action could be made” is used instead of spelling out such places in the manner of RCP 191. As under the former provision, exception is made for local court rules and a reference must be executed in the county in which the action is triable. The next to the last sentence in rule 191, which provided for vacation of a judgment granted in violation of its terms, has been omitted. Since the provision was primarily for the convenience of the courts, no harm is done if a court not designated enters the judgment. The defaulting defendant who is entitled to notice under subdivision (f) can oppose an application brought in the wrong court. To allow him to sit by and then move to vacate the judgment, only to have it reentered later in a proper court, is wasteful and unnecessary. The substance of the final sentence of rule 191 has been placed in subd (b).

The requirement, contained in subd (e) of this section, that the applicant for a default judgment file proof of service of the summons and complaint and an affidavit of the amount due appeared in CPA §§ 486, 490 and 494-a and RCP 189 and 192. The requirement of CPA § 487 that a verified complaint be filed when application was made to the clerk has been altered. This subdivision requires the filing of an affidavit of the facts constituting the claim in all applications for default judgments, whether before court or clerk. Rule 192(3), which provided that when service was made otherwise than personally within the state or by substituted service the court must require proof of the cause of action, is also covered by the extension of this provision.

The requirement of proof of quasi-in-rem jurisdiction is the same as that of former rule 192(2) and § 493, although the phrase “when jurisdiction is based on an attachment of property” is used in place of the former language, “if the defendant is a non-resident or a foreign corporation.” However, the requirement in rule 192(4), that the plaintiff or his agent or attorney must be examined on oath respecting any payment to him or for his use on account of the demand, is not carried over into this subdivision. The requirement of an affidavit of the amount due will achieve the same purpose.

The notice requirements of RCP 190 have been continued by subd (f) of this section. Where a clerk could enter judgment but for the fact that a year had elapsed since the default, i.e., where the damages are liquidated or can be ascertained by computation, there is, of course, no need for an assessment and the second paragraph of this subdivision has no application.

Subd (g) of this section is identical to CPA § 488 except for the omission of the last phrase in that section—“for want of an answer”—which is unnecessary. CPA § 488 covered a very limited situation. It originated as an amendment to Field Code § 246 in 1856 (see Code Civ Proc § 512, note (Throop ed (1880)), when there were no provisions for judgment based on pleadings and admissions (CPA § 476) or summary judgment. RCP 113, 114. Former § 476 (“Judgment on pleadings or admission of part of cause”) is covered by CPLR § 4401 as to a motion for judgment during the trial based on admissions and by CPLR rule 5012 as to judgment on less than all claims or part of a claim. Judgment on admissions before trial may be had upon a motion for summary judgment under CPLR rule 3212. Since a motion is thus required in every case for a judgment based on admissions, entry of the judgment would be governed by CPLR rule 5016 which covers entry of judgment in all cases other than those tried entirely by a jury as of right, except default judgments. The procedure prescribed by former § 488 and this subdivision differs only in that it authorizes taking judgment “as upon a default,” rather than by a motion. It thus calls into play the provisions of the other subdivisions of this section allowing the clerk to enter judgment for a computable sum which contain particular notice and proof requirements. However, even where the sum is computable, if the admission concerns only part of a claim or a multi-claim or multi-party case, a court order and a severance would be required in any event. See CPLR rule 5012 and § 3019(f); Prashker, New York Practice 433, 738, 742 (3d ed 1954); Carmody, New York Practice 612, 637 (7th ed Forkosch 1956). Upon a motion for such an order a court could of course make an assessment or require proof or notice just as upon any default according to the needs of the particular case.

1986 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends the repeal of the unnumbered last paragraph of CPLR 308, which mandates that a notice of default judgment, in addition to that contained in the summons, be served on a defendant who is a natural person in an action arising out of consumer credit transaction, and the transfer of this provision, clarified and improved, into CPLR 3215. This measure does not propose, however, to alter in any essential aspect the protection against sewer service which the present law, enacted by chapter 344 of the Laws of 1977, provides.

The language of the 1977 legislation, although salutary in intent, has given rise to technical problems. The procedure would be improved by the recommended changes, as follows:

1. The application of the provision to actions for nonpayment of a contractual obligation would be changed to those arising from a consumer credit transaction. This change is consistent with the purpose of the provision to protect against sewer service, which is rare in contract actions except those arising from consumer credit transactions.

2. Actions affecting title to property would be excepted. Title companies are justly apprehensive that, in such actions, the requirement to give additional notice could be troublesome in that inadvertent failure to do so allows vacatur of the default judgment, thus generating challenges to title many years after entry of judgment.

3. In conformance with general practice, provision would be made for service of the additional notice by the employee of an attorney, as well as by the party or his attorney, as at present.

4. It would be made clear that the additional notice may be mailed not only after, but also simultaneously with service of process.

5. Where there has been compliance with the additional notice requirements, failure of the defendant to receive such notice shall not preclude entry of, or invalidate, the default judgment. Without this provision, the plaintiff would be penalized unfairly by being prevented from obtaining a judgment where it is impossible to serve the additional notice on the defendant.

This measure would relocate the provisions governing default notices, now located in CPLR 308 (service of process), to a new paragraph 3 of CPLR 3215(f) (notice requirements for entry of default judgment), where it more logically belongs. CPLR 3215(e) would be amended to correct an obsolete cross-reference to CPLR 308; and a number of other minor verbal and mechanical improvements would also be made.

1990 Recommendations of Advisory Committee on Civil Practice:

Rule 3215(f)[(g)](4).

The Association of Supreme Court Justices of the State of New York and the Advisory Committee on Civil Practice recommend that the Business Corporation Law and the CPLR be amended to provide for an additional service by mail to a corporate defendant before a default judgment may be entered against the defendant in instances where service has been made by serving the office of the Secretary of State as agent. Section 306(b) of the BCL would be amended to make a cross-reference to new paragraph 4 of CPLR 3215(f), to be added to that CPLR section to provide that default judgment may be sought against such a defendant by submission of an affidavit that an additional service of summons was made by first class mail posted to the last known address of the defendant’s principal place of business. Such service would not be jurisdictional. Failure of the defendant corporation to answer would not preclude entry of default judgment. The new provision would not apply to Small Claims Court or summary proceedings involving possession or actions involving title to real property, where other considerations prevail.

It is the experience of many members of the Association of Supreme Court Justices that far too many inconveniences and abuses to parties and to the courts are occasioned by the existing provisions, because often a corporation does not receive process because of its failure to inform the office of the Secretary of State of a change in its post office address. The corporation learns of the service when a default judgment is entered. The corporation then usually moves in the Supreme Court to vacate the judgment, occasioning unnecessary and avoidable motion practice.

The Advisory Committee and the Association of Supreme Court Justices believe that the proposed legislation will prevent or greatly reduce the present inconvenience to parties and burden on the courts arising from delay in service of process occasioned by failure of corporations to report changes of address to the office of the Secretary of State. By permitting a party who has served a corporation through service on the Secretary of State to serve an additional summons, which would not be jurisdictional, on such defendant at the last known address of its principal place of business, and by requiring such additional service for the purpose of taking a default, the proposal would reduce the number of such cases that now clutter the courts with defendants’ motions to vacate default judgments.

1994 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that CPLR 3215(g)(1), as amended by Chapter 584 of the Laws of 1990, and as subsequently relettered by Chapter 255 of the Laws of 1992, be amended further to clarify an ambiguity occasioned by the 1990 amendment.

The 1990 amendment requires the giving of notice by the party seeking a default judgment when the clerk enters such a judgment. CPLR 3215(g)(1) now provides for five days’ notice to a defaulting party who appeared in the action, not only where a motion to enter default judgment must be made to the court, but also in cases involving a sum certain, where a judgment may be entered upon application to the clerk without a formal motion. The language is technically deficient in that literally it appears to link the notice that must be given when the clerk enters default judgment to the making of a motion, although, clearly, no formal motion to the court is required, or should be required in that circumstance. If not rectified, this ambiguity will confuse the bar, the courts and court clerks as to the proper procedures when judgment is entered by the clerk.

The Committee urges clarification of the provision by eliminating the term “motion” and substituting a reference to an application made to a judge or the clerk.

The committee recommends that a new section 1320 of the Real Property Actions and Proceedings Law (“RPAPL”) be added and that CPLR 3215(g)(3)(iii) be amended to provide additional notice to the mortgagor that a foreclosure action has been commenced. This recommendation has been made by members of the Judiciary who believe that unsophisticated homeowners currently do not receive sufficient notice that they are about to lose their homes through foreclosure.

To address this issue, the Committee recommends the creation of a new section of the RPAPL, § 1320, which would add a special summons requirement in private residence mortgage foreclosure cases. This new provision would be applicable to mortgage foreclosures on residential property containing not more than three units. In addition to the usual requirement applicable to a summons in the court, a bold face notice written in plain English would now have to accompany the summons commencing the foreclosure action. This document would provide an explicit warning that if the defendant does not come to court and answer, his or her real property could be taken. It informs the recipient that the entire balance of the mortgage loan is now due, and recommends that the defendant immediately engage an attorney or go to the local court’s Office for the Self-Represented for assistance.

This proposal also would amend CPLR 3215(g)(3)(iii) to extend the requirement that there be a second notice to a defaulting defendant in a residential mortgage foreclosure proceeding before a default judgment can be issued. Currently, under CPLR 3215(g)(3)(i), a second summons must be sent to a defendant when a plaintiff seeks to obtain a default judgment due to the non-appearance of a natural person based upon a failure to pay a contractual obligation. This summons must be sent by first class mail to the defendant’s place of residence, or if that is unknown, to his last known place of employment, or if that is unknown, his last known residence. Although this second notice requirement would seem to include residential mortgage contracts, subdivision (iii) of the same statute states that the extra notice need not be given when the action affects title to real property. The Committee’s proposal would simply limit the last exception, and exclude from its ambit residential mortgage contracts.

The Committee recommends adoption of this proposed amendment to CPLR § 3215(b) to outline the procedure for an inquest on a default judgment.

A defendant who defaults in appearing concedes only liability. See Rokina Opt. Co. v. Camera Kings, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 198-99, 469 N.E.2d 518, 519-20 (1984) (“a defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages”); Glenwood Mason Supply Co., Inc. v. Frantellizzi, 138 A.D.3d 925, 31 N.Y.S.3d 107 (2d Dep’t 2016). Therefore, the defaulting defendant may still contest damages at an inquest. The CPLR does not contain a detailed procedure for conducting an inquest, but there are provisions in the Uniform Rules for the Supreme and County Courts (“Uniform Rules”) addressing the issue. These provisions permit the plaintiff to put in paper proof of damages at the inquest and do not require live testimony. Section 202.46 of the Uniform Rules, entitled: “Damages, inquest after default; proof” provides:

(a) In an inquest to ascertain damages upon a default, pursuant to CPLR 3215, if the defaulting party fails to appear in person or by representative, the party entitled to judgment, whether a plaintiff, third-party plaintiff, or a party who has plead a cross-claim or counterclaim, may be permitted to submit, in addition to the proof required by CPLR 3215(e) [sic; should be CPLR 3215(f)], properly executed affidavits as proof of damages. (emphasis added) (b) In any action where it is necessary to take an inquest before the court, the party seeking damages may submit the proof required by oral testimony of witnesses in open court or by written statements of the witnesses, in narrative or question-and-answer form, signed and sworn to. (emphasis added) See Archer v. Motor Veh. Accident Idem. Corp., 2012 NY Slip OP 33568(U), 2012 WL 10816412 (Sup. Ct., Queens County 2012)(setting down matter for inquest but noting “[i]n lieu thereof, plaintiff may submit properly executed affidavits as proof of damages ( 22 NYCRR 202.46)”), aff’d on other grounds 188 A.D3d 5 (2d Dep’t 2014); see also Siegel, New York Practice § 295 (“Papers on Default Application”)(“Even at an inquest on damages conducted after the defendant has conceded liability by failing to appear, the plaintiff may put in paper proof of damages; live testimony is not indispensable.”).

There are similar Uniform Rules in other courts. See 22 N.Y.C.R.R. § 208.32 (“Damages, inquest after default; proof”) (Uniform Civil Rule for the New York City Civil Court permitting submission of proof at inquest by affidavits); see also 22 N.Y.C.R.R. § 202.70(g), Commercial Division Rule 32(a)(“Direct Testimony by Affidavit”)(allowing testimony by affidavit at a contested non-jury trial or evidentiary hearing, not just an inquest upon a default).

Despite the existence of these procedures in the Uniform Rules governing default judgment applications, the Committee has been informed that courts and lawyers may not be aware of their existence. Furthermore, the procedure allowed by the plain language of these rules may not sufficiently respect the due process right of a defaulting party to fully cross-examine witnesses testifying as to damages.

In Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 (1984), the Court of Appeals held that “judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and ‘a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages’.” Quoting from Rokina in Conteh v. Hand, 234 AD2d 96 (1st Dep’t 1996), the First Department ruled that Supreme Court improperly refused to permit the defendants to call a witness at an inquest on damages after the completion of plaintiff’s testimony. The court remanded the matter for a new inquest on damages. In Ruzal v. Mohammad, 283 A.D.2d 318, 319, 724 N.Y.S.2d 854 (1st Dep't 2001), the First Department ruled that Supreme Court “erred in holding an inquest on submissions only without defendant having first defaulted on a formal inquest proceeding (22 NYCRR § 202.46[a]).” Quoting again from Rokina and citing to Conteh, the First Department ordered “the matter restored to the trial calendar for a proper inquest on damages.” There is also case law interpreting the Uniform Rules, which holds that the plaintiff can only proceed on documentary proof if a defaulting defendant does not contest damages at the inquest. In Suleiman v. Miamor Transp. Corp., 13 Misc.3d 1230(A), 2006 WL 3068963 (Sup.Ct., Bronx County 2006), for example, the trial court refused to allow plaintiffs to submit affidavits from their doctors as proof of damages in lieu of their testimony. Interpreting Uniform Rule 202.46, the court concluded that the rule does not permit the plaintiff to submit proof of damages at an inquest in documentary form if the defendant appears at the inquest. Similarly, in Rivera v. Serrata, 19 Misc. 3d 379, 852 N.Y.S. 2d 830 (Sup. Ct., Bronx County 2008), where the inquest was conducted before a jury, the court held that the presentation of written statements pursuant to Uniform Rule 202.46 in lieu of live testimony “would not sufficiently assist the jurors in determining whether plaintiff suffered a ‘serious injury’ and in their assessment of the amount of damages.” The court read the phrase “‘before the court’ in the rule, 22 N.YC.R.R. 202.46(b), as providing that plaintiff may present such documentary evidence only in a non-jury proceeding, since the court, as finder of fact, would be in a position to properly evaluate and weigh such evidence, along with that, if any, presented by the defendant.” The court’s decision in Suleiman relies on language in Rokina, Conteh, and Ruzal to reach the conclusion that a plaintiff is not permitted to submit proof of damages on papers alone if the defendant appears at the inquest. The Committee believes that this interpretation of the relevant Uniform Rules is unnecessarily restrictive, as a party applying for a default judgment before the court should be permitted to submit proof in affidavit form. See Rawlings v. Gillert, 104 A.D.3d 929, 962 N.Y.S.2d 325 (2d Dep’t 2013)(while noting that “the defendant is entitled to a ‘full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages,’” the court also ruled that “plaintiff should have been permitted to submit evidence, including affidavits ( see 22 NYCRR 202.46), supporting her claims for [damages]”). The defaulting party must, however, be afforded the opportunity to fully cross-examine any damages witnesses, regardless of whether they have provided oral testimony or have submitted proof in affidavit form.

Given the conflicting case law in this area, the Committee requests the following amendment to CPLR 3215(b) to ensure clarity and due process in default judgment actions.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1964, ch 290, § 1; L 1965, ch 148, § 1; L 1965, ch 749, §§ 2, 3, eff Sept 1, 1965; L 1966, ch 487, § 1; L 1967, ch 31, § 1; L 1968, ch 720, § 1; L 1977, ch 344, § 3; L 1986, ch 77, §§ 2, 3; L 1986, ch 355, § 8; L 1990, ch 419, § 2, eff Jan 1, 1991; L 1990, ch 584, § 2; L 1992, ch 255, § 1, eff Jan 1, 1993; L 1994, ch 100, § 4, eff May 16, 1994; L 2006, ch 453, § 1, eff Aug 16, 2006; L 2007, ch 458, § 2, eff Aug 1, 2007; L 2019, ch 627, § 1, effective December 12, 2019; L 2021, ch 593, § 11, effective May 7, 2022; L 2021, ch 831, § 2, effective April 30, 2022; L 2023, ch 57, § 1 (Part Y, Subpart A), effective October 30, 2023.