A nullity or not? The status of a default judgment entered absent compliance with CPLR 3215(f).

• Author: Higgitt, John R.
• Position: New York

Default judgments are an integral part of civil practice. Attractive because they provide parties with the spoils of successful litigation without the hassle of actually litigating controversies, default judgments are a desired commodity. (1) CPLR 3215 establishes the procedure that a plaintiff (2) must follow to procure a default judgment; one component of the plaintiffs application for a default judgment is "proof ... of the facts constituting the claim." (3) What if the plaintiff seeking the default judgment fails to submit proof of the facts of its claim, but a default judgment is nonetheless rendered against the defaulting defendant? Is that judgment void and therefore a nullity, allowing the defendant to have it vacated at any time simply on request? Or, can the plaintiffs failure to submit proof of the facts of its claim be overlooked?

Whether a plaintiffs failure to submit sufficient proof of its claim on its application for a default judgment renders the judgment a nullity has important consequences in practice, yet this issue is unsettled: A split exists among the departments of the appellate division as to whether a default judgment entered in the absence of proof of the claim is a nullity, and the Court of Appeals has yet squarely to resolve the point. This article reviews the default judgment statute; examines the requirement that a plaintiff submit proof of the facts of its claim; and surveys the case law regarding the consequences of a plaintiffs failure to submit sufficient proof of its claim.

1. CPLR 3215--THE DEFAULT JUDGMENT STATUTE

   CPLR 3215 permits a plaintiff to seek a default judgment against a defaulting defendant, (4) but requires the plaintiff to do so within one year of the default. (5) Where "the plaintiffs claim is for a sum certain or for a sum which can by computation be made certain," the plaintiffs application for a default judgment may be made to the clerk of the court. (6) Only a narrow class of claims may be submitted to the clerk. In this regard, the statute contemplates "a situation in which ... there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments." (7) Thus, causes of action seeking unliquidated damages--such as torts (8)--or equitable relief (9) do not fall within that reserved class. If the complaint (or summons with notice) asserts any claim other than one for a "sum certain," the plaintiffs application for a default judgment must be made to the court. (10)

   The plaintiff must, regardless of the type of claim involved, submit the following on its application for a default judgment: (1) proof of service of the initiatory papers on the defendant; (2) "proof of the facts constituting the claim" and, if damages are sought, the amount due; and (3) proof of the default. (11) As to items one and three, the process server's affidavit demonstrates proof of service of the summons and complaint or summons with notice, (12) and the proof of the default should be supplied by the plaintiffs attorney because the attorney, rather than the client, generally has firsthand knowledge of the default. (13)

   As to item two, proof of the claim must be supplied by someone with personal knowledge of the facts underlying the claim. (14) The individual providing the firsthand factual account of the claim should submit an affidavit (or, where appropriate, an affirmation) (15) that, along with any other evidence submitted in support of the application for the default judgment, demonstrates "enough facts to enable a court to determine that a viable cause of action exists." (16) Stated differently, the plaintiff must provide firsthand confirmation of facts establishing each element of the claim and make a prima facie showing that the defaulting defendant is liable. (17) In gauging the sufficiency of the plaintiffs proof on an application for a default judgment, the court must keep in mind that (1) where the defendant defaulted in appearing or answering the action, the plaintiff has not had the benefit of discovery, and (2) "defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them." (18) Where the plaintiff commenced the action using a complaint that the plaintiff itself verified, that pleading can serve as an affidavit. (19) Beware of a complaint verified by the plaintiffs attorney. Unless the attorney has firsthand knowledge of the facts underlying the claim, which the attorney rarely will have, a complaint verified by the attorney is generally inadequate to establish proof of the claim. (20)

   Default judgments are sometimes rendered absent compliance with CPLR 3215(f), i.e., a plaintiff occasionally obtains a default judgment against a defendant despite the absence of sufficient proof of the facts of the plaintiff's claim. A determination as to whether a plaintiff has adduced sufficient proof of its claim involves the exercise of legal judgment and judicial discretion. (21) Thus, where a default judgment is rendered on a claim for a "sum certain" by the clerk, who has no authority to perform judicial functions, (22) the sufficiency of the facts of the claim will not have been determined prior to entry of the judgment. (23) Where the claim does not involve a "sum certain" and the application is addressed to the court, the court can (and should) review the sufficiency of the plaintiffs evidence regarding the proof of the claim before granting an application for a default judgment. (24) To be sure, when the application for a default judgment is addressed to the court, the entry of the judgment is not a ministerial act, (25) and the court must avoid the temptation to merely rubber stamp a proposed default judgment. (26) Sometimes, however, a court will misgauge the sufficiency of the proof (or not gauge it at all) and render a default judgment on a claim that the plaintiff failed to show was viable. (27) Thus, regardless of whether the clerk or the court granted the application for the default judgment, the question of whether the plaintiff demonstrated sufficient proof of its claim may not be settled by entry of the default judgment.

2. CONSEQUENCES OF ABSENCE OF PROOF OF THE CLAIM

   Where a default judgment is entered despite the plaintiff's failure to submit sufficient evidence demonstrating the proof of its claim, a critical question arises: Does the plaintiffs failure to submit that evidence render the judgment void (and thus a nullity) or merely voidable? If the judgment is void, the defendant can seek to have it vacated at any time without having to make the standard two-part showing for vacating a default judgment on the ground of excusable neglect under CPLR 5015(a)(1) (28)--a reasonable excuse for the default and a potentially meritorious defense. (29) If the judgment is not void, however, the defendant must move under CPLR 5015(a)(1) to vacate the judgment, and will be put to the task of making an evidentiary showing to have the judgment vacated. Note, too, that a defendant seeking relief under CPLR 5015(a)(1) is generally constrained to do so within one year after service upon that party of a copy of the judgment with written notice of entry. (30)

   The Court of Appeals has yet to address directly whether a default judgment entered despite the plaintiffs failure to comply with CPLR 3215(f) is a nullity. (31) Thus, a defendant against whom a default judgment has been entered must consult the law of the department of the appellate division in which the default judgment was entered when preparing its motion to vacate the judgment.

   In the Second Department, the judgment is not void and a defendant seeking to vacate the judgment is required to move within one year of service upon it of a copy of the judgment with notice of entry, and, on that motion, make the dual showing of a reasonable excuse for the default and a potentially meritorious defense. (32) That rule (and the rationale for it) was articulated in the lead case from that court on the subject--Freccia v. Carullo. (33)

   In Freccia, a default judgment was entered against a defendant who

   failed to answer the complaint. The plaintiffs application for the default judgment, which was presented to the clerk because the claim was for a "sum certain," did not contain an affidavit of the facts underlying the plaintiff's claim prepared by a person with firsthand knowledge. Rather, to establish the facts constituting her claim, the plaintiff relied upon the affirmation of her attorney, who did not have personal knowledge of the facts of the claim. Approximately three years after the default judgment was entered, the defendant moved to vacate the judgment, arguing, among other things, that it was "jurisdictionally defective because plaintiff's attorney submitted an affidavit of claim, instead of plaintiff." (34) The defendant asserted that the default judgment was jurisdictionally infirm and therefore void, and its motion to vacate, which was made long after its time to seek relief under CPLR 5015(a)(1) had passed, (35) was not time-barred because she was entitled to relief under CPLR 5015(a)(4), (36) a provision with no stated time limit. (37)

   The Second Department rejected the defendant's arguments and affirmed the order of the trial court denying the defendant's motion to vacate the default judgment, concluding that: (1) only errors that deprive a court of subject matter jurisdiction over an action render a judgment null and void; (2) a court only lacks subject matter jurisdiction over a matter when the court lacks the competence to entertain an action; and (3) a plaintiff's failure to submit proof of the facts of her claim goes only to the substance of her claim--a "procedural element" of her right to enter a default judgment--and not to the competence of the court to adjudicate the claim. (38)

   Consequently, in the Second Department, a defendant cannot obtain vacatur of a default judgment under CPLR...