On August 20, 2025, Justice Masley of the New York County Commercial Division issued a decision in Bldg 44 Devs. LLC v. Pace Cos. N.Y., LLC, 2025 NY Slip Op. 33126(U), declining to grant a default judgment based on the failure to appear by counsel due to the plaintiff’s failure submit facts establishing its claim, explaining:
[T]he court rejects plaintiff’s assertion that, due to defendant’s failure to appear by counsel, defendant’s liability is established as a matter of law. While failure to appear by counsel constitutes default in appearing, it does not automatically entitle plaintiff to a default judgment. Instead, a party is entitled to a default judgment upon meeting its burden under CPLR 3215. Plaintiff’s cited authority does not suggest otherwise.
. . .
CPLR 3215(f) requires that an applicant for a default judgment submit proof of the facts constituting the claim, e.g. plaintiff’s affidavit or a verified complaint. The standard of proof is minimal, not stringent.
Here, plaintiff merely states in a footnote in its brief that proof of the facts constituting plaintiff’s claims exists in the deposition testimony of its corporate representative as well as its expert reports on defendant-caused damages and delays. The court will not accept a general reference to discovery materials as proof of claim. The burden is on plaintiff, not the court, to review discovery materials and provide proof of plaintiff’s claim in support of its allegations in the unverified complaint.
(Internal quotations and citations omitted).