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Absence of a Certificate of Conformity Not a Fatal Defect Re: a Motion for a Default Judgment/Court Should Not Have Raised, Sua Sponte, a Defense to the Motion on Behalf of Defendant Who Did Not Answer or Appear

The Second Department reversed Supreme Court, finding that the absence of a certificate of conformity was not fatal to the motion for a default judgment:

In 2012, the plaintiff, a resident of the State of Georgia, commenced this action against the defendant, alleging breach of contract and unjust enrichment. On June 22, 2012, the defendant was served with a copy of the summons and complaint pursuant to CPLR 308(1). He neither appeared in the action, interposed an answer, nor otherwise moved with respect thereto. Thereafter, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” … . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]…). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements … . Although the Supreme Court found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect … . Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf … . Todd v Green, 2014 NY Slip OP 08004, 2nd Dept 11-19-14

 

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