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Unopposed Motions to Enter a Default Judgment Properly Denied—Insufficient Proof of Facts Constituting the Claim

In finding the denial of plaintiff’s unopposed motions to enter a default judgment was proper, the Second Department explained the documentary requirements: “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… . … The plaintiff failed to submit an affidavit of the facts constituting the claim (see CPLR 3215[f]). While a verified complaint may be used as the affidavit of the facts constituting the claim (see CPLR 3215[f]), it must contain evidentiary facts from one with personal knowledge … . [A] pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits…” [internal quotations omitted]. DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 2015 NY Slip Op 04087, 2nd Dept 5-13-15

 

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