THOMAS MARCELLE, J.
Relin, Goldstein & Crane, LLP, Adam J. Karns, Esq., of Counsel, Attorney for Plaintiff.
THOMAS MARCELLE, J.
Plaintiff has made an application for a default judgment. CPLR 3215(f) governs default judgments in a situation where, as here, a defendant has failed to appear. CPLR 3215(f) requires that a plaintiff prove four elements: (1) proper service of the initiatory papers; (2) the defendant is in default; (3) proof of mailing of the notice requirement by CPLR 3215(g)(3) ; and (4) the facts constituting the plaintiff's claim and amount owed.
With respect to the first three elements, plaintiff has proven each with competent evidence. The application contains an affidavit that demonstrates the Summons and the Complaint were served in accordance with CPLR 308. Further, plaintiff's attorney has supplied an affidavit showing default. Finally, a third affidavit presents compliance with CPLR 3215(g)(3).
The Court cannot robotically grant a default judgment even when a plaintiff has established personal jurisdiction coupled with defendant's failure to appear. Rather, even in the absence of an adversary, the law mandates evidence indicating that the cause of action bears validity (Dyno v. Rose, 260 A.D.2d 694, 697–98 [3d Dept 1999] ). This standard of proof is not stringent, amounting only to firsthand confirmation of the facts. Thus, “[a]n applicant for a default judgment must submit either an affidavit asserting the facts comprising the claim or a verified complaint, so the court has nonhearsay confirmation of the factual basis constituting a prima facie case” (State v. Williams, 44 AD3d 1149, 1151–52 [3d Dept 2007] ).
A court possesses the power to draw factual inferences and legal conclusions in the course of its discretionary obligation to determine the merits of the default application (Dyno, 260 A.D.2d at 698 ). Under no circumstances, however, in the absence of either a verified complaint or an affidavit by a person with knowledge may a court enter a default judgment (Mullins v. DiLorenzo, 199 A.D.2d 218, 220 [1st Dept 1993] ). To the contrary, where admissible proof of a prima facie case is lacking, the court has the inherent “authority to sua sponte dismiss plaintiffs' complaint upon their motion for a default judgment” (Martocci v. Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [3d Dept 2006] ).
Here, the default application is supported by the Complaint which was verified by counsel and the affidavit of Josetta Jenkins. A complaint verified by counsel is pure hearsay, devoid of evidentiary value and is therefore insufficient to support entry of a default judgment (Ritzer v. 6 E. 43rd St. Corp., 47 AD3d 464 [1st Dept 2008] ). That leaves Ms. Jenkins' affidavit. Ms. Jenkins avers that she has reviewed the relevant records and that such records indicate that: defendant executed an installment contract on February 2013; the contract was assigned to plaintiff (no date of assignment is indicated); the defendant failed to make one or more payments (although no information is supplied as to when and how many payments were missed) and the defendant owes $3,627.90 under the contract.
Normally, telling a court what a document says would be disallowed as inadmissible hearsay. The legislature, however, created an exception to this rule for business records. CPLR 4518(a) provides that if the proponent establishes that the document at issue was made as part of a business practice essential to the business's performance, that the type of document is generated in the routine, habitual, systematic course of business and that the document was created contemporaneous with or within a reasonable time after the recorded event, then the document is admissible. In short, the record must be made in the regular course of business; it must be the regular course of the business to make such record and the record must made within a reasonable time of the event that it recorded (see People v. Cratsley, 86 N.Y.2d 81, 89 ( [1995] ).
Ms. Jenkins' affidavit properly recites the foundation for the business record exception. Although scant in its presentation, the Jenkins affidavit establishes a contract and a breach thereof. Therefore, the Court concludes that plaintiff is entitled to judgment on the issue of liability.
The amount of the judgment to which plaintiff is entitled raises substantial questions—questions which cannot be resolved without an evidentiary hearing. Since a default by defendant failing to appear does not constitute an admission as to damages, it remains plaintiff's burden to prove its damages through competent evidence (Paulson v. Kotsilimbas, 124 A.D.2d 513, 514 (1st Dept 1986] ). Courts may enter a default judgment awarding damages without an evidentiary hearing only if the amount of damages is a liquidated sum, an amount capable of mathematical calculation, or an amount demonstrated by detailed affidavits—in essence, in the parlance of the statute, a “sum certain” (CPLR 3215[a] ). Therefore, unless the damages sought in an action are for a sum certain, damages may only be awarded against a defaulting party upon notice and “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Reynolds Sec., Inc. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572 [1978] ).
Plaintiff's proof leaves the Court unable to ascertain damages with mathematical precision. Ms. Jenkins' affidavit fails to establish the terms of the contract (no contract is even attached). The affidavit further states, in the most conclusory fashion, that “[a]fter giving proper credit for all payments, rebates and set-offs, there remains due and owing $ 3,627.90.” Conspicuously absent from plaintiff's submission is the amount of the monthly payment, the date the last payment was made, how many payments were missed and the amount of any fees or interest imposed together with the amount of any rebates or set-offs. In short, plaintiff has failed to present proof that would allow the Court to calculate damages with certainty.
The Court will not speculate on how plaintiff arrived at $ 3,627.90 of damages. Instead, the Court will conduct an inquest on damages pursuant to CPLR 3215(b). Based upon the foregoing, it is
ORDERED that plaintiff's application for a default judgment is granted, in part, and, denied in part, in accordance with the decision; and it is further
ORDERED that an inquest on damages will be held in Cohoes City Court on April, 25, 2016 at 9:00 a.m.; and it is further
ORDERED that, at the hearing, plaintiff should be prepared to produce witnesses and documents to establish damages in accordance with the rules of evidence; and it is further
ORDERED that plaintiff shall serve upon the defendant a copy of its default application together with the supporting papers and a copy of this Decision and Order no later than April 11, 2016 and file with the Court proof of service upon defendant on or before April 22, 2016; and it is further
ORDERED that no additional written submissions or affidavits will be taken, allowed or considered unless subsequent to the hearing the Court deems submissions necessary to assist it in arriving at a decision on damages.
The foregoing constitutes the Decision and Order of the Court.
Williams' main holding, that an applicant's failure to prove the facts constituting the claim is a jurisdictional defect rendering a default judgment void, was abrogated by the Court of Appeals (see Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21 NY3d 200 [2013] ).
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