| Todd v Green |
| 2014 NY Slip Op 08004 [122 AD3d 831] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Andrew C. Todd, Appellant, v Delroy Green,Respondent. |
Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant.
In an action, inter alia, to recover damages for breach of an oral agreement, theplaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.),entered August 15, 2013, which denied his unopposed motion pursuant to CPLR 3215for leave to enter judgment against the defendant upon his failure to answer or appear,with leave to renew upon submission of a proper affidavit.
Ordered that the order is reversed, on the law, without costs or disbursement, and theplaintiff's unopposed motion pursuant to CPLR 3215 for leave to enter a judgmentagainst the defendant upon his failure to answer or appear is granted.
In 2007, the plaintiff allegedly leased a used 2004 Mercedes Benz automobile from athird-party creditor for use by the defendant. The plaintiff and the defendant allegedlyentered into an oral agreement, pursuant to which the defendant agreed to make all of themonthly installment payments. In or around late 2011, the defendant stopped making themonthly payments. As a result, the creditor repossessed the vehicle, and sought paymentfrom the plaintiff in the principal amount of $22,407.12, plus $3,368.07 in interest, for atotal amount due of $25,775.19.
In 2012, the plaintiff, a resident of the State of Georgia, commenced this actionagainst the defendant, alleging breach of contract and unjust enrichment. On June 22,2012, the defendant was served with a copy of the summons and complaint pursuant toCPLR 308 (1). He neither appeared in the action, interposed an answer, nor otherwisemoved with respect thereto. Thereafter, the plaintiff moved pursuant to CPLR 3215 forleave to enter a default judgment. The Supreme Court determined that the plaintiff'saffidavit of merit, notarized in Georgia, lacked a proper certificate of conformity asrequired by CPLR 2309 (a), and denied the motion, with leave to renew upon thesubmission of a proper affidavit. The plaintiff appeals.
" 'A party's right to recover upon a defendant's failure to appear or answer isgoverned by CPLR 3215' " (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740 [2014],quoting Beaton v TransitFacility Corp., 14 AD3d 637, 637 [2005]). Thus, a plaintiff moving for a defaultjudgment against a defendant must submit proof of service of the summons andcomplaint, proof of the facts constituting the claim, and proof of the defaultingdefendant's failure to appear or answer (see CPLR 3215 [f]; U.S. Bank N.A. v Poku, 118AD3d 980 [2014]; U.S. Bank, N.A. v Razon, 115 AD3d at 740; Cruz v Keter Residence, LLC,115 AD3d 700 [2014]). Here, in support of his motion to enter a default judgment,the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980 [2014]).Although the Supreme Court [*2]found that the plaintiff'saffidavit lacked a proper certificate of conformity, it should have considered the affidavitsince the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121AD3d 343 [2014]; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960[2013]; Fredette v Town ofSouthampton, 95 AD3d 940, 942 [2012]). Further, even if the subject certificateof conformity was inadequate, the defendant failed to answer or appear in opposition tothe motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issueon the defendant's behalf (seeMidfirst Bank v Agho, 121 AD3d 343 [2014]).
Accordingly, the Supreme Court should have granted the plaintiff's motion for leaveto enter a default judgment against the defendant upon his failure to appear or answer thecomplaint. Dillon, J.P., Chambers, Cohen and Maltese, JJ., concur.