SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 23, 2011
GREHER LAW OFFICES, P.C.,
Appeal from an order of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), dated December 10, 2009.
Greher Law Offs., P.C. v Doyle
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 23, 2011
PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ
The order denied defendant's motion to vacate a default judgment and to dismiss the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment and to dismiss the complaint is granted.
Plaintiff law firm commenced this action by "summons with notice" and "verified -- affirmed" complaint, alleging that defendant owed it $4,810. As a first cause of action, plaintiff alleged "breach of contract," and, as a second cause of action, plaintiff alleged that defendant owed that sum for "work, labor and professional services." After defendant failed to appear or answer, plaintiff obtained a default judgment against him in the principal sum of $4,810, by application to the clerk of the court, pursuant to CPLR 3215 (a). Approximately two months later, defendant moved to, among other things, vacate the default judgment and dismiss the complaint based upon plaintiff's failure to comply with the pleading requirements of part 137 of the Rules of the Chief Administrator of the Courts (22 NYCRR § 137.0 et seq.). The City Court denied the motion in its entirety.
CPLR 3215 (a) allows entry of a default judgment by the clerk without application to the court when, among other things, the claim is "for a sum certain or for a sum which can by computation be made certain." Upon submission of the requisite proof, the clerk will enter judgment in the amount demanded in the complaint. CPLR 3215 (f) provides that, when applying for a default judgment, a plaintiff must file proof of service of process "and proof of the facts constituting the claim, the default, and the amount due by affidavit made by the party." The statute further provides that "[w]here a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such a case, an affidavit as to the default shall be made by the party or the party's attorney."
Defendant is entitled to vacatur of the default judgment entered against him because plaintiff did not file "proof of the facts constituting the claim" either by verified complaint or by sufficient affidavit (see CPLR 3215 [f]). Moreover, the entry of judgment by the clerk is authorized only when the action is for a "sum certain," i.e., an action in which, once liability is established, there can be no dispute as to the amount due, and damages can be ascertained without resort to extrinsic proof (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 ); in this case, plaintiff submitted nothing but the allegation in the unverified complaint that defendant owed plaintiff money for "breach of contract" and for "work, labor and professional services."
Furthermore, pursuant to part 137 of the Rules of the Chief Administrator of the Courts, "[a]n attorney who institutes an action to recover a fee must allege in the complaint: (i) that the client received notice under this Part of the client's right to pursue arbitration and did not file a timely request for arbitration; or (ii) that the dispute is not otherwise covered by this Part" (Rules of Chief Administrator of Cts [22 NYCRR] § 137.6 [b]). The complaint in this case contained no such allegations, and plaintiff did not address this issue even in the papers it submitted in opposition to defendant's motion. Where an attorney fails to comply with these pleading requirements, the dismissal of the complaint is warranted (see Herrick v Lyon, 7 AD3d 571 ; Paikin v Tsirelman, 266 AD2d 136 ; see also Hobson-Williams v Jackson, 10 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2005]; cf. Abramson Law Group, PLLC v Bell, 28 Misc 3d 135[A], 2010 NY Slip Op 51405[U] [App Term, 1st Dept 2010]). Accordingly, the order is reversed and defendant's motion to vacate the default judgment and to dismiss the complaint is granted.
Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: May 23, 2011
© 1992-2011 VersusLaw Inc.