Default Judgment; Dismissal for Failure to Act; Discontinuance

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 373-442

Chapter 39

default Judgment;

dismissal for failure to act;

discontinuance

QUICK VIEW

Definitions: A party in default has failed to appear or has failed to perform some required act. When a party is in

default, the other party may be entitled to a default judgment on his or her claim, or a dismissal of the defaulting

party’s claim. A discontinuance is a voluntary withdrawal of a claim by the claimant.

Scope: Rules and techniques applicable to moving for default judgment or for moving for a dismissal after a

default by a claimant. Rules and techniques applicable to discontinuing an action. Filing formalities for various

types of default judgments and dismissals. Inquests. Rules and techniques for opening a default judgment or

order. Filing formalities for motions to open a default judgment or order. Oral argument.

Strategies and Tactics:

Movant:

Before deciding to move for a default judgment or for a dismissal:

• Determine whether the other party is, in fact, in default.

• Determine whether a motion for a dismissal or default judgment can be circumvented by the defaulting

party’s request for an extension of time.

• Determine whether a motion for dismissal or default is timely and whether all prerequisites have been

met.

• Support motion with requisite affidavits.

• Comply with all notice requirements.

Opponent:

If notice to the defaulting party is required:

• Determine whether to oppose the motion.

• Serve responding papers and any necessary cross-motions.

Statutes and Rules: CPLR 317, 3012(b), 3215, 3216, 3217, 3404, 5015; see also, CPLR 2214 and 2215 and

Uniform Rules for Supreme and County Court (§§202.5 - 202.8) regarding motions, CPLR 3126 and 3042

regarding default judgments or dismissals for failure to provide discovery bills of particulars, CPLR 2004

regarding extensions of time, CPLR 2005 regarding law office failure, and CPLR 320 regarding appearance.

Related Topics: Pleadings, Ch 15; Motion Practice, Ch 16; Discovery Motions, Ch 31.

New York Civil PraCtiCe BeFore trial 39-2

Forms: See digital access for the following forms:

• Form 39:10, Affirmation of Regularity.

• Form 39:20, Affidavit of Facts Supporting Default Judgment.

• Form 39:30, Affidavit in Opposition to Motion for Default Judgment and Affidavit of Meritorious

Defense.

• Form 39:40, Default Judgment.

• Form 39:50, Notice of Motion to Vacate Default Judgment.

• Form 39:60, Stipulation Vacating Default Judgment.

• Form 39:70, Order to Show Cause.

• Form 39:80, Defendant’s Affidavit of Merit.

• Form 39:90, Insurer’s Affidavit of Merit.

• Form 39:100, Attorney’s Affidavit of Merit.

• Form 39:110, Demand to File Note of Issue (from Court).

• Form 39:120, Demand to File Note of Issue (from Defendant).

• Form 39:130, Notice of Motion to Restore Case to Trial Calendar.

• Form 39:140, Notice of Discontinuance.

• Form 39:150, Stipulation Discontinuing Action.

• Form 40:50, Settlement Agreement.

• Form 40:60, Stipulation for Discontinuance After Settlement.

TABLE OF CONTENTS

I. Default Judgment [CPLR 3215]

A. Basic Points

§39:01 Meaning of “Default”

§39:02 Not Only Against Defendants

§39:03 Depends on Circumstances

§39:04 Consequences

§39:05 Res Judicata and Collateral Estoppel

B. Entry by Court Clerk

1. BASIC POINTS

§39:10 Authority

§39:11 For Violating Stipulation of Settlement

§39:12 Usually for Failure to Appear

§39:13 Procedure and Moving Papers

§39:14 One-Year Deadline

§39:15 Attorney Fees

§39:16 If Judgment Improperly Entered

§39:17 Costs Judgment Based on Plaintiff’s Default

2. PLAINTIFF’S MOTION — IF “SUM CERTAIN”

§39:30 “Sum Certain” Defined

§39:31 Case Examples

§39:32 No Discretion in Fixing Damages

§39:33 Advantages

§39:34 If Multiple Causes of Action

§39:35 If Judgment Not Against All Defendants

§39:36 If Defendant Only Counterclaims in Contract Action

39-3 deFault JudgmeNt; dismissal For Failure to aCt; disCoNtiNuaNCe

C. Entry by Court

§39:50 Authority

§39:51 If Judgment Not Against All Defendants

D. If Default More Than One Year Old

1. BASIC POINTS

§39:60 Discretion to Grant Late Motion

§39:61 Two-Part Showing Required

§39:62 Five Days’ Notice

§39:63 What Is “One Year”?

§39:64 If Default Is by Third-Party Defendant

§39:65 Checklist for Late Applicants

2. PLAINTIFF’S REQUIREMENTS

a. Valid Excuse for Delay

§39:70 Settlement Negotiations

§39:71 Investigation by Insurer

§39:72 Law Office Failure

§39:73 Extreme Delay

b. Meritorious Claim

§39:80 Admissible Evidence Required

§39:81 Sufficient Facts and Proof

§39:82 Motion to Dismiss Not Precluded by Informal Appearance

E. Types of Default Conduct

1. NO INITIAL APPEARANCE

§39:90 Appearance Requirement

§39:91 How Defendant May Appear

§39:92 If Complaint Not Served with Summons

§39:93 When Defendant Must Appear

2. FAILURE TO TIMELY RESPOND TO PLEADING

§39:100 Failure to Answer Complaint

§39:101 Failure to Reply to Counterclaim

§39:102 Failure to Answer Cross-Claim

§39:103 No Response to Amended Pleading

§39:104 Motion to Extend Response Time

3. VIOLATING SETTLEMENT WITH PROVISION FOR JUDGMENT

§39:110 Authority

§39:111 Purpose

§39:112 Must Be Validly Commenced Action

§39:113 Stip Must Authorize Judgment

4. OTHER DEFAULT CONDUCT

§39:120 Failure to Comply with Disclosure

§39:121 Default at Calendar-Call or Conference

§39:122 Failure to Appear at Trial

F. Avoiding Plaintiff’s Application for Default

§39:130 Why Avoid

§39:131 Stipulate with Opposing Counsel

§39:132 Cure Default ASAP