SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
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v.
Plaintiff(s),
INDEX NO.:
NOTICE OF MOTION FOR A DEFAULT JUDGMENT AND ORDER OF
REFERENCE
MORTGAGED PROPERTY: COUNTY:
SBL #:
Defendant(s)
PLEASE TAKE NOTICE that, upon the affirmation of [Attorney Name] dated
[Date], the affidavit of [Name of Bank Representative], sworn to [Date], the exhibits
attached thereto, and all prior proceedings in this case, Plaintiff [Name of Plaintiff] will
move this court at [Insert Date and Time] before [Insert Appropriate Part of Court], at the
Supreme Court, [Insert County Name] County, [Insert Court Address], or as soon
thereafter as the parties may be heard, for an order:
1. Appointing a referee to compute the amount due to Plaintiff, examine whether the
mortgaged property known as [Insert Street Address] may be sold in parcels, and
make his/her computation and report with all convenient speed pursuant to
RPAPL §1321;
2. [Choose One] Adding names of tenant(s) residing at mortgaged property as named
defendants pursuant to RPAPL §1311, amending the caption to add [Names of
Tenant(s) Residing at Mortgaged Property as Defendants], and removing “John
Doe” as a party defendant in this action -OR- Removing “John Doe” as a party
defendant in this action as no tenants reside at the property and amending the
caption to reflect the 1
removal of “John Doe” as a party defendant;
3. [If Requesting a Substitution] Substituting [New Note Holder] into the caption in the
place and stead of Plaintiff, and, following such substitution, that the Clerk of the
Court amend the docket and electronic docket of the Court accordingly;
4. Declaring that all non-appearing and non-answering defendants are in default
pursuant to CPLR 3215; and
5. Such additional relief as to the Court may deem just and proper.
[Add any additional requests for relief here]
pursuant to CPLR 2214(b), answering
PLEASE TAKE FURTHER NOTICE that,
papers and notice of cross-motion, with supporting papers, if any, must be served upon
the undersigned at least seven (7) days prior to the return date of this motion.
DATED: __________________ [County], New York
___________________________________ [Attorney’s Name]
for Plaintiff [Name of Plaintiff] [Address]
[Telephone]
[Law Firm]
Attorneys
TO: [All Defendants must be noticed and their addresses listed here]
A. PRELIMINARY STATEMENT
Plaintiff respectfully submits this Memorandum of Law in support of its Motion for entry
of default judgment against non-appearing Defendant no. 2 S, pursuant to CPLR
§3215(a).
B. THE FACTUAL RECORD
The annexed affirmation of ___________, Esq. and exhibits, establish that
Defendant no. 1, I (“I”) has a duty to defend and indemnify Plaintiff, E (E") in a personal
injury action commenced by T (“T”), pursuant to the Commercial Umbrella Liability
Policy no. ___________, issued by I to E, with effective dates from ______ to ______.
Such annexed affirmation and exhibits also establish that Defendant no. 2, S, Inc. (“S")
has a duty to pay the self-insured retention of $ _______ under N policy in order to
contribute towards the damages claimed by T. Defendant no. 2 subcontracted Plaintiff to
perform carpentry work at _________ under the sub-contract dated _________.
The subcontract required Plaintiff to obtain liability insurance for an amount of at
least $_______ combined single limit naming S as additional insured. Plaintiff obtained
primary liability insurance from Q for an amount of $_________ and excess insurance
coverage from I for an amount of $_______. Defendant no.2 obtained self-insured
retention insurance policy from its primary insurer N. T, an employee of Plaintiff at
relevant point of time, filed a personal injury action against Defendant no. 2 for injuries
suffered on ________ while working on construction site of Defendant no.2. Defendant
no.2 filed a third party complaint against Plaintiff. Plaintiff was impleaded as a third
party Defendant in the above personal injury action. Thereafter, Defendant no. 2 filed a
declaratory judgment action against Plaintiff, Q and Defendant no. l in _______. On the
date of occurrence, the insurance policies were in force. The Court held that Q was
obligated to provide, on a primary basis, coverage and a defense to Defendant no.l.
Plaintiff was unaware about the actual damages claimed by T, and believed that Q being
the primary insurer would solely be liable to indemnity Defendant no. l. Defendant no. 1
came to know about T 's action in ____ by virtue of the declaratory judgment action filed
by Defendant no.2 in ________. However, Defendant no.l sent a denial letter disclaiming
its duty to provide coverage to Plaintiff on ________. Defendant no.l did/does not have a
plausible explanation for such delay. Such belated denial by Defendant no.l was/ is not
effective, and did not/ does not insulate Defendant no. l from its duty to indemnify and
Plaintiff under the excess insurance coverage. Defendant no. 2 has also refused to pay
self-insured retention amount of $ _______ on the ground that Defendant no. 1’s policy
affords priority coverage over N.
Therefore, Plaintiff filed an Amended Complaint for Declaratory judgment on
________ praying for a declaration that (a) Pursuant to the Commercial Umbrella
liability policy issued to Plaintiff, Defendant no.1 has a duty to defend and indemnify
Plaintiff (in the personal injury action filed by T against Defendant no.2 wherein Plaintiff
was impleaded as a third party defendant), and (b) Defendant no.2 , has a duty to pay the
self-insured retention of $ ______under N policy in order to contribute towards the
damages claimed by T.
Plaintiff served Summons and Amended Complaint for Declaratory judgment
properly on Defendant no.1. Defendant no.1 has filed Answer and Affirmative Defense
dated _______.
C. PLAINTIFFS IS ENTITLED TO JUDGMENT BY DEFAULT
Under CPLR §3215(a), if a Defendant fails to appear or plead in spite of proper
service of Summons and Complaint, Plaintiff may obtain default judgment. In this case,
Defendant no. 2 was lawfully served with Summons and the Amended Complaint for
Declaratory judgment which the Affidavit of Service dated ________ reflects. In
addition, Defendant no.2 was aware of the lawsuit when the Summons and the Amended
Complaint for Declaratory judgment was served through affidavit of service dated _____.
Defendants have not responded and are in default. The technical requirements under
CPLR §3215 to obtain default judgment in the State of New York are submission of the
following: Proof of service of the Summons and Complaint; Proof of the claim, and Proof
of default. CPLR §3215; See Clemente Latham Concrete v Integrity Masonry, Inc., 2013
N.Y. Misc. LEXIS 3842 (N.Y. Sup. Ct. Aug. 28, 2013); Boyarski v. City of New York,
2013 N.Y. Misc. LEXIS 337 (N.Y. Sup. Ct. Jan. 22, 2013).
Plaintiff has submitted the requisite proof to obtain default judgment. Plaintiff
proved evidence of lawful service on Defendant no.2 by a licensed process server. Such
affidavit of service, which sets forth that service was made in accordance with CPLR
§308, is prima facie proof of service. See Landco Mtge. Bankers, Inc. v Shinnecock
Realty Corp., 2012 N.Y. Misc. LEXIS 1630 (
Sup. Ct. Mar. 29, 2012)
Plaintiff has provided with the detailed proof of the claim as stated in the
Amended Complaint for Declaratory judgment as against Defendant no.2. The Amended
Complaint for Declaratory judgment clearly establishes that defendant no.2, has a duty to
pay the self-insured retention of $ _______ under N in order to contribute towards the
damages claimed by T, and accordingly Plaintiff respectfully requested the Court to grant
Amended Complaint for Declaratory judgment.
Plaintiff submits that, when Defendant
no.2 defaulted and failed to respond to Amended Complaint for Declaratory judgment, all
the factual allegations, and reasonable inferences to be drawn therefrom, are considered
admitted as they relate to liability against Defendant no.2. The proof of default is
properly established by the affirmation of ________ Esq., Plaintiff’s attorney and
respectfully filed before the Honorable Court.
D. CONCLUSIONS
For the reasons and cause of action contained in the Amended Complaint for Declaratory
judgment, Motion for Default judgment and affirmation submitted herewith and in
addition to any other relief the Honorable Court deems just and reasonable Plaintiff
respectfully requests the following:
3. Judgment by default in favor of Plaintiff declaring that Defendant no.2 has a duty to
pay the self-insured retention of $ _______ under N policy in order to contribute
towards the damages claimed by T.
4. For such other and further relief in Plaintiff’s favor as may be just and proper.
Respectfully submitted,
Date: _____________.
ADD CLAUSES
Plaintiff, The New York Times Company (“Plaintiff” or “The Times”), brought
this action to enjoin Defendant, Contessa Bourbon (“Defendant” or “Ms. Bourbon”),
from engaging in conduct that is likely to cause confusion or injury to the business
reputation of The Times, or dilution of the distinctive quality of The Times’s trademarks,
in violation of New York General Business Law, N.Y. Gen. Bus. Law § 360-L. Plaintiff
commenced this action against Defendant on November 9, 2017 by e-filing a Summons
and Complaint. Believing that Ms. Bourbon was properly served with the Summons and
Complaint pursuant to New York Civil Practice Law and Rules (“C.P.L.R.”) §§ 306-b
and 308(4), and that sufficient proof of service pursuant to C.P.L.R. § 306 had been
submitted, Plaintiff filed a motion for default judgment on March 13, 2018 (the “Original
Motion for Default Judgment”). This Court denied Plaintiff’s Original Motion for Default
Judgment on May 22, 2018, finding that, while The Times had submitted adequate proof
of the facts constituting its claims, The Times had failed to show prima facie that Ms.
Bourbon was served with process pursuant to C.P.L.R. § 308. This Court further found
that The Times was entitled to a default judgment, provided that it submits valid proof of
service of process upon Ms. Bourbon.
Plaintiff filed a Motion for an Extension of Time to Serve Contessa Bourbon on
June 4, 2018. This Court granted the motion upon good cause shown and in the interest of
justice, and allotted Plaintiff an additional 60 days from the date of the decision, July 20,
2018, to serve process upon Defendant and file proof of said service.
Plaintiff’s verified Summons and Complaint were timely and properly served on
Defendant on August 2, 2018 in compliance with C.P.L.R. §§ 302, 306-b, 308, and 313.
An affidavit of said service, pursuant to C.P.L.R. § 306 was filed with the Court on
August 30, 2018, along with the Renewed Motion for Default Judgment. Defendant
failed to answer, move, or otherwise respond within the time limits required under the
law to the Summons and Complaint duly served upon her.
C.P.L.R. § 3215(a) provides, in pertinent part, that “[w]hen a defendant has failed to
appear, plead or proceed to trial...the plaintiff may seek a default judgment against him.”
On a motion for default judgment under C.P.L.R. § 3215 based upon a failure to answer
the complaint, a plaintiff must demonstrate entitlement to a default judgment against a
defendant by submitting: (1) proof of service of the summons and complaint; (2) proof of
the facts constituting its claim; and (3) proof of the defendant’s default in answering or
appearing. (See C.P.L.R. § 3215(f); Matone v. Sycamore Realty Corp., 50 A.D.3d 978,
858 N.Y.S.2d 202 (2d Dep’t 2008); Allstate Ins. Co. v. Austin, 48 A.D.3d 720, 851
N.Y.S.2d 375 (2d Dep’t 2008); see also Liberty Cty. Mut. v. Ave. I Med., P.C., 129
A.D.3d 783, 11 N.Y.S.3d 623 (2d Dep’t 2015).)
On the instant motion, Plaintiff presents proof of adequate service pursuant to C.P.L.R.
§§ 302, 306, 306-b, 308, and 313. Plaintiff also offers adequate proof on the merits of the
claims by means of the Memorandum of Law in Support of Plaintiff’s Renewed Motion
for Default Judgment, the Second Affirmation of David McCraw, dated August 30, 2018,
the Second
Affirmation of Steven Lieberman, dated August 30, 2018, and the accompanying
Exhibits thereto, and all prior pleadings and proceedings. Defendant has not appeared in
the instant action. As such, Plaintiff has shown prima facie entitlement to entry of a
default judgment against Defendant.
Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Default Judgment against Defendant Contessa
Bourbon pursuant to C.P.L.R. § 3215 is granted without opposition submitted; and it is
further