Dyno v. Rose

91 Citing cases

  1. Bank of Am. v. David

    2023 N.Y. Slip Op. 50222 (N.Y. City Ct. 2023)

    This understanding of the law has persisted to the present day; under the CPLR, the granting of a default judgment is not a mandatory ministerial duty, but rather a matter of judicial discretion. Matter of Dyno v Rose, 260 A.D.2d 694 (3d Dep't 1999). Indeed, CPLR§ 3215(b) explicitly authorizes the court to "make an assessment or take an account or proof."

  2. Discover Bank v. Brown

    2023 N.Y. Slip Op. 50220 (N.Y. City Ct. 2023)

    This understanding of the law has persisted to the present day; under the CPLR, the granting of a default judgment is not a mandatory ministerial duty, but rather a matter of judicial discretion. Matter of Dyno v Rose, 260 A.D.2d 694 (3d Dep't 1999). Indeed, CPLR§ 3215(b) explicitly authorizes the court to "make an assessment or take an account or proof."

  3. Capital Equity Mgmt. v. Sunshine

    73 Misc. 3d 1072 (N.Y. Sup. Ct. 2021)   Cited 2 times

    Rodriguez , 261 A.D.2d 165, 165-166, 690 N.Y.S.2d 201 [1st Dept. 1999] ; Himelein v. Frank , 155 A.D.2d 964, 965, 547 N.Y.S.2d 775 [4th Dept. 1989] ), the County Clerk is not required to make any discretionary determinations when considering the application (seeMatter of Brusco , 84 N.Y.2d at 679-680, 621 N.Y.S.2d 291, 645 N.E.2d 724 ; Klostermann , 61 N.Y.2d at 539-540, 475 N.Y.S.2d 247, 463 N.E.2d 588 ; Matter of Margolis v. New York State Dept. of Motor Vehs. , 170 A.D.3d 843, 845-846, 96 N.Y.S.3d 129 [2d Dept. 2019] ; Matter of Cassar v. Condon , 165 A.D.3d 1208, 1208-1209, 87 N.Y.S.3d 121 [2d Dept. 2018] ; Matter ofLiang v. Hart , 132 A.D.3d 765, 765-766, 17 N.Y.S.3d 771 [2d Dept. 2015] ; Matter ofNational Equip. Corp. v. Ruiz , 19 A.D.3d 5, 15, 794 N.Y.S.2d 2 [1st Dept. 2005] ; Matter of County of Albany v. Connors , 300 A.D.2d 902, 903-904, 754 N.Y.S.2d 678 [3d Dept. 2002] ; see also Matter ofWeinstein v. Haft , 60 N.Y.2d 625, 627, 467 N.Y.S.2d 350, 454 N.E.2d 933 [1983] ; cf. Matter ofDyno v. Rose , 260 A.D.2d 694, 697-698, 687 N.Y.S.2d 497 [3d Dept. 1999] ). While on occasion, a default judgment application may be submitted to the County Clerk which involves a claim that seems to be pushing the boundary of what is considered a sum certain, thereby entitling the County Clerk to make a discretionary decision not to entertain it, and to require the plaintiff to seek a court order, this case does not involve one of those "boundary calls."

  4. Vidurek v. N.Y. Supreme Court

    108 A.D.3d 896 (N.Y. App. Div. 2013)   Cited 1 times

    Initially, petitioners cannot use a collateral CPLR article 78 proceeding seeking the extraordinary remedy of mandamus to, in effect, challenge respondent's order dismissing their complaint; the proper remedy would be a direct appeal of that order ( see Matter of Dyno v. Rose, 260 A.D.2d 694, 697, 687 N.Y.S.2d 497 [1999],appeal dismissed93 N.Y.2d 998, 695 N.Y.S.2d 743, 717 N.E.2d 1080 [1999],lv. denied94 N.Y.2d 753, 700 N.Y.S.2d 426, 722 N.E.2d 506 [1999];Matter of Jemzura v. Mugglin, 207 A.D.2d 645, 646, 616 N.Y.S.2d 104 [1994],appeal dismissed84 N.Y.2d 977, 622 N.Y.S.2d 915, 647 N.E.2d 121 [1994];Matter of Ferguson v. Cheeseman, 138 A.D.2d 852, 853, 526 N.Y.S.2d 237 [1988] ). In any event, petitioners have absolutely no legal right to create a new court of record or to issue court orders ( seeN.Y. Const., art. VI, § 1[a], [b]; Judiciary Law § 2).

  5. Walley v. Walley

    79 A.D.3d 1236 (N.Y. App. Div. 2010)   Cited 47 times

    In evaluating whether plaintiff has fulfilled this obligation, defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" ( Woodson v Mendon Leasing Corp., 100 NY2d 62, 71). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case ( see Matter of Dyno v Rose, 260 AD2d 694, 698, appeal dismissed 93 NY2d 998, lv denied 94 NY2d 753). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" ( Green v Dolphy Constr. Co., 187 AD2d 635, 636; see Matter of Dyno v Rose, 260 AD2d at 697-698). Under such circumstances, the court may sua sponte dismiss a plaintiffs complaint upon his or her motion for a default judgment ( see Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022, lv dismissed 7 NY3d 916, cert denied 552 US 918)

  6. Dep't of Envtl. Prot. of City of N.Y. v. Bd. of Managers of the Cassa N.Y. Condo.

    2024 N.Y. Slip Op. 51572 (N.Y. Sup. Ct. 2024)

    As this court explained in its prior decision (see 2024 NY Slip Op 50490[U], at *5), decades of precedent teach that even on default, the court retains the obligation to exercise its judgment to "determine whether the applicant has met the burden of stating a prima facie cause of action." (Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]; see also Wine Antiques, Inc. v St. Paul Fire & Mar. Ins. Co., 40 A.D.2d 657, 658 [1st Dept 1972].) The "lack of opposition does not negate this judicial function."

  7. Credit Acceptance Corp. v. Yerry

    38 N.Y.S.3d 830 (N.Y. City Ct. 2016)

    The Court cannot robotically grant a default judgment even when a plaintiff has established personal jurisdiction coupled with defendant's failure to appear. Rather, even in the absence of an adversary, the law mandates evidence indicating that the cause of action bears validity (Dyno v. Rose, 260 A.D.2d 694, 697–98 [3d Dept 1999] ). This standard of proof is not stringent, amounting only to firsthand confirmation of the facts.

  8. Credit Acceptance Corp. v. Yerry

    2016 N.Y. Slip Op. 50678 (N.Y. Ct. Cl. 2016)

    The Court cannot robotically grant a default judgment even when a plaintiff has established personal jurisdiction coupled with defendant's failure to appear. Rather, even in the absence of an adversary, the law mandates evidence indicating that the cause of action bears validity (Dyno v Rose, 260 AD2d 694, 697-98 [3d Dept 1999]). This standard of proof is not stringent, amounting only to firsthand confirmation of the facts.

  9. In re Chaffee

    Case No.: 07-11636, Adv. No.: 07-90171 (Bankr. N.D.N.Y. Aug. 10, 2010)   Cited 1 times

    CPLR 3215(f) requires a party moving for default judgment to submit either an affidavit asserting the facts that comprise the claim or a verified complaint, in which case the verified complaint may serve as the affidavit of merits ( Hann v Morrison, 247 AD2d 706). The court retains the discretionary obligation to determine whether the applicant has met the burden of stating a prima facie cause of action and if the court determines that the complaint or affidavit of facts fail to establish a prima facie case, the applicant is not entitled to the requested relief, even on default ( Dyno v. Rose, 260 AD2d 694). In support of the application, plaintiff has submitted a copy of the summons and complaint.

  10. Wynkoop v. 622A President St. Owners Corp.

    169 A.D.3d 1100 (N.Y. App. Div. 2019)   Cited 2 times

    We agree with the Supreme Court's denial of the plaintiffs' motion for leave to enter a default judgment against the corporation, as the plaintiffs did not establish proper service of the complaint upon the corporation (see CPLR 3215[f] ; Cordero v. Barreiro–Cordero, 129 A.D.3d 899, 900, 10 N.Y.S.3d 454 ; Todd v. Green, 122 A.D.3d 831, 831–832, 997 N.Y.S.2d 155 ). Moreover, where the allegations of a complaint or affidavit of facts fail to establish a prima facie case, "the applicant is not entitled to the requested relief, even on default" ( Matter of Dyno v. Rose, 260 A.D.2d 694, 698, 687 N.Y.S.2d 497 ; seeMorgenthau v. Rodriguez, 261 A.D.2d 165, 166, 690 N.Y.S.2d 201 ). At bar, the plaintiffs failed to support their motion with an adequate factual affidavit (seeMorgenthau v. Rodriguez, 261 A.D.2d at 166, 690 N.Y.S.2d 201 ).