On August 28, 2025, Justice Masley of the New York County Commercial Division issued a decision in McMillan v. Out-Look Safety LLC, 2025 NY Slip Op. 33247(U), denying a motion for default judgment for failure to plead facts establishing the claim, explaining:
CPLR 3215 (f) requires a plaintiff to submit proof of the facts constituting the claim, the default and the amount due by affidavit made by the party. Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party’s attorney. Here, the amended complaint is labeled as “Verified”, but it is unverified. However, plaintiffs submit affidavits in support of their application. Plaintiffs affirm that they have read the Amended Complaint and know the full contents thereof and state that the same is true to their own knowledge; except as to the matters therein stated to be alleged upon information and belief, and as to those matters, they believe them to be true.
However, plaintiffs generalized form affidavits stating that they believe the allegations based upon information and belief to be true do not remedy the fact that the allegations supporting the claim are solely based on upon information and belief without the slightest reference to the source of the information or the grounds for the belief. Plaintiffs ought to be able to attest to what services they provided. Having had discovery in this matter, plaintiffs should have documentary proof for allegations such as whether the contract at issue obligate defendants to pay plaintiffs prevailing wages.
Since the allegations in support of plaintiffs’ breach of contract, unjust enrichment, and quantum meruit are based on information and belief, and plaintiffs’ affidavits lack reference to plaintiffs’ grounds for the belief, the court cannot grant a default judgment on these claims.
(Internal quotations and citations omitted).