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Comment on the Recommendation for Amendment to the Uniform Rules for the New York City Civil Court and the Uniform Rules for the City Courts Outside of New York City
December 3, 2013
Comment on the Recommendation for Amendment to the Uniform Rules for the New York City Civil Court and the Uniform Rules for the City Courts Outside of New York City
At its regular meeting on November 19, 2013, the NYCLA Civil Court Practice Section reviewed the Advisory Committee on Civil Practice proposal as to amending the Uniform Rules for the New York Civil Court (22 NYCRR 208.00 et seq.) and the Uniform Rules for the Civil Courts Outside of New York City (22 NYCR 210.00 et seq.) to incorporate certain forms as official statewide forms for use in consumer credit matters as proof of default judgments. The Section voted against adoption of the proposal as a court rule and recommends instead an amendment to the Civil Practice Law and Rules.
CPLR Section 3215(f) requires that an application for a default judgment include “proof by affidavit made by the party of the facts constituting the claim.” In the context of a default judgment, our Court of Appeals, in Woodson v. Mendon Leasing Corporation, 100 N.Y.2d 62 (2003), makes clear that an allegation of the facts is sufficient.
A verified complaint may be submitted instead of an affidavit when the complaint has been properly served (see CPLR 3215[f]). Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists. Indeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them…. [Citations omitted; emphasis added.]
Of particular note is that the Court of Appeals reversed the Appellate Division’s ruling that an application for default was insufficient where it did not have any “firsthand confirmation of the facts.” As interpreted by the Court of Appeals, CPLR Section 3215(f) simply does not contemplate the same type, competence or level of proof for the entry of a default judgment as would be required on a motion for summary judgment or at trial.
The Advisory Committee seeks to revise the current CPLR lower evidentiary standard for entry of default judgments in consumer credit matters. The Committee’s proposal, with a higher evidentiary standard, would enhance protection for consumers, a change the Section supports. The Advisory Committee proposal looks to incorporate recent case law involving summary judgment motions on the manner in which a plaintiff-assignee in an action stemming from the purchase of a consumer’s debt must establish a foundation for the records of the non-party to use the records in an action against a debtor. It cites the case of Unifund CCR Partners v. Youngman, 89 A.D.3d 1377, 932 N.Y.S.2d 609 (4th Dep’t 2011) (citing, in turn, Palisades Collection, LLC v. Kedik, 67 A.D.3d 1329 (4th Dep’t 2009)).
The Committee’s proposal would also codify directives of the Civil Court of the City of New York that currently require a default application to be accompanied by affidavits proving chain of title.
The Section believes that, for the reasons articulated by the Advisory Committee, the Committee’s proposal has substantial merit. However, the Section respectfully submits that the New York City Civil Court’s directives, and the Advisory Committee’s proposal if adopted, are inconsistent with the practice and procedure on applications for default judgments provided by CPLR Section 3215(f) as interpreted by the Court of Appeals. For this reason, the Section urges that the Advisory Committee’s recommendations be adopted not as a rule of the courts but rather pursued as an amendment to the CPLR.