Commercial Division litigators are keenly aware of CPLR 3215’s proof requirements. We can recite in our sleep the need to submit (1) proof of service, (2) proof of default, (3) the amount due, and (4) facts constituting the claim. While the elements themselves are pretty straightforward, the nuances can be tricky – particularly relating to the facts necessary to constitute the claim. The CPLR permits the facts constituting the claim to be submitted by affidavit or the complaint itself, if it is verified. There is no express language in the CPLR suggesting that the movant is required to show prima facie entitlement to relief. But as Manhattan Commercial Division reiterated recently in Bellino v. Dormet, Inc., et al., that is exactly what is required.
Background:
Bellino stems from a business venture allegedly gone bad. Plaintiff alleges that between 2019 and 2020 he and his business partner formed Doromet, Inc. (the “Company”) to import precious metals from South America to the United States. Plaintiff alleges to have made capital contributions to the Company totaling $550,000 between August 2019 and August 2020 that were ultimately used to purchase gold that was going to be imported by supplier – defendant Garcia (“Garcia”) in compliance with the legal requirements of Brazil and the United States. Plaintiff alleges that the Company paid Garcia $1 million to purchase and import gold from Brazil, which included $500,000 of Plaintiff’s capital contribution. According to Plaintiff, the gold was seized by Brazilian authorities due to alleged non-compliance with Brazilian export requirements. Plaintiff thereafter demanded return of his $550,000 from his partner and Garcia, neither of whom complied.
Continue Reading Commercial Division Reiterates That It’s Not a Rubber Stamp for CPLR 3215 Default Motions: Movant Must Set Forth Prima Facie Entitlement to Judgment
