3215

CPLR § 3215 Default judgment

Anderson v Vasquez, 2011 NY Slip Op 08550 (2nd Dept., 2011)

In support of her unopposed motion pursuant to CPLR 3215(f) for leave to enter a judgment in the principal sum of $41,500 against the defendant, upon the defendant's default in appearing or answering the complaint, the plaintiff presented proof that was sufficient to establish that she had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71). The plaintiff presented, among other things, her affidavit attesting to her claim that she made a series of loans to the defendant, that the defendant promised to repay the loans, that the defendant failed to do so, and proof of the amount due on the loans (see Golding v Gottesman, 41 AD3d 430; Langenbach v Renna, 255 AD2d 366; Wallach v Dryfoos, 140 App Div 438, 440). Furthermore, the plaintiff submitted a process server's affidavit attesting to service of the summons and complaint on the defendant, and her attorney's affidavit regarding the defendant's default in appearing or answering the complaint (see CPLR 3215[f]). Accordingly, the plaintiff's unopposed motion for leave to enter a default judgment in the principal sum of $41,500 against the defendant should have been granted (see Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Zino v Joab Taxi, Inc., 20 AD3d 521).

IMP Plumbing & Heating Corp. v 317 E. 34th St., LLC., 2011 NY Slip Op 08470 (1st Dept., 2011)

Dismissal of NYU's cross claims against the general contractor was also not warranted. NYU correctly asserts that, as in third-party actions, CPLR 3215(c)'s mandate that an action is deemed abandoned unless "proceedings" towards a default are taken within one-year of the default, does not apply to indemnification claims until liability is established in the main action (see Multari v Glalin Arms Corp., 28 AD2d 122, 124 [1967], appeal dismissed 23 NY2d 740 [1968]). Indeed, the motion court recognized such principle, but applied it only to the first cross claim. To the extent the second cross claim is one for contribution, the same principle applies, as the claim is asserted in the verified answer as specifically contingent upon a finding of liability against NYU in the main action.

Furthermore, with respect to all three cross claims, the standard employed by the motion court — one year from service of the verified answer — is not required by CPLR 3215(c), which mandates the one-year period as accruing from the default in answering the claim. Here, the moving papers do not indicate the date of the general contractor's alleged default, and only provide the date NYU's pleading containing the cross claims was served.

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