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County Clerk Not Authorized to Enter Judgment Where the Underlying Stipulation Required Notice Prior to Entry and Extrinsic Evidence Was Required to Calculate the Amount

The Second Department vacated a clerk’s judgment which had been entered based upon defendant’s alleged violation of a stipulation requiring monthly installments to pay off a judgment. The stipulation allowed the entry of judgment only “upon ten (10) days notice” and extrinsic evidence was necessary to calculate the amount of the judgment:

… [T]he … County Clerk did not have authority to enter a clerk’s judgment against Wielgus pursuant to CPLR 3215(i)(1). This statute states, in relevant part, that “[w]here . . . 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, . . . 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” (CPLR 3215[i][1] [emphasis added]). Although the stipulation provided that [plaintiff bank] could enter a money judgment against [defendant] in the event of a default, it permitted entry of such a judgment only “upon ten (10) days notice” to [defendant]. Thus, the stipulation was not one which provided for entry of a judgment upon default “without further notice.” Moreover, the stipulation did not provide for entry of a judgment “in a specified amount.” Rather, it provided that the judgment to be entered upon [defendant’s] default would be calculated so as to “credit [defendant] for all payments made on account.” The stipulation thus did not specify the exact principal sum of the judgment that [plaintiff bank] would have the right to enter based on a default … under the stipulation; rather, it provided for a formula that required reference to extrinsic proof … .

Furthermore, as a general rule, a clerk’s judgment should not be entered where, as here, the amount of the judgment can be determined only by reference to extrinsic proof … . Generally, a judgment should be entered on application to the clerk only where “there can be no dispute as to the amount due”… . Under these circumstances, HSBC was required to apply to the court, rather than to the clerk, for an order enforcing the stipulation and granting leave to enter an appropriate judgment … . HSBC Bank USA, N.A. v Wielgus, 2015 NY Slip Op 06494, 2nd Dept 8-12-15

 

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