Upon reading Plaintiff's Motion for default judgment ("Motion"), submitted on default, together with all supporting documents, Motion #1 is decided as follows.

On November 20, 2018, Plaintiff commenced the instant consumer debt action for money damages in the amount of $904.93. Plaintiff thereafter served Defendant pursuant to CPLR 308(2), completing same on December 19, 2018, and filing the Affidavit of Service with the Clerk of the Court on December 20, 2018. The parties entered into a Stipulation of Settlement ("Stipulation") on January 2, 2019, pursuant to which Defendant agreed to pay Plaintiff the original sued amount, by an initial payment of $100.00 due on or before January 18, 2019; followed by consecutive monthly payments of $100.00 due on or before the 18th day of each and every month thereafter, until the settled amount was fully paid. Thereafter, on January 19, 2019, Plaintiff filed a copy of the Stipulation.

In the Motion, Plaintiff alleged that Defendant made four payments over the course of four months totaling $400.00 between January 28, 2019 to May 17, 2019 (Mot., Exhibit C). [*2]When Defendant stopped making payments pursuant to the terms of the Stipulation, a Notice of Default in Stipulation dated August 9, 2019 was issued to Defendant. On or about April 21, 2020, Plaintiff filed the Motion for a default judgment to recover the remaining balance of $504.93 plus interest from November 27, 2015, as well as costs and disbursements against Defendant. On September 17, 2024, the Clerk of the Court sent a Notice of Appearance to all parties at their last known address, directing their appearance on the Motion on the rescheduled date of September 30, 2024. Plaintiff appeared, however, Defendant failed to appear. The Motion was submitted on default and was subsequently assigned to this Court for a determination.

CPLR 3215(i)(1) states, in pertinent part:

"Where, after commencement of an action, a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment in a specified amount with interest, if any, from a date certain, the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with a complaint or a concise statement of the facts on which the claim was based, and if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies" (CPLR 3215[i][1]) [Emphasis added].

CPLR 3215(i) is applicable when the stipulation of settlement provides for entry of judgment "without further notice" in a "specified amount". Here, Paragraph 4 of the Stipulation set forth the consequences for Defendant's failure to abide by the settlement terms, expressly stating, "should any payment not be received by the due date, or should any check sent in payment be returned by the bank for any reason whatsoever, and the payment not be received within 10 days after written notification to [D]efendant and/or [D]efendant's attorney, [P]laintiff shall have the right to enter judgment, for the suit amount, less any payments received, together with all costs and disbursements" (Stipulation, ¶4). While it could be concluded that the provision stated in Paragraph 4 was to allow the entry of judgment upon Defendant's default, it is clear that such entry could not have been made "without further notice" (CPLR 3215[i]) since the Stipulation specifically provided that a written notice of default be given to Defendant, even requiring that Defendant be provide with an ten (10) day opportunity to cure Defendant's default (see Mashatt v Alsahlani, 139 AD3d 820, 821, 34 N.Y.S. 3d 60 [2nd Dept 2016]; see also Marine Bulkheading, Inc. v Mannino, 150 AD3d 1096, 52 N.Y.S. 3d 639 [2nd Dept 2017]).

Moreover, application to the clerk is not appropriate where the monetary amount must be calculated or can be determined only by reference to extrinsic proof and not on the face of a settlement agreement (see HSBC Bank USA, N.A. v Wielgus, 131 AD3d 510, 510, 15 NYS3d 170 [2nd Dept 2015]). Here, the amount of the monetary judgment cannot be determined on the face of the Stipulation, as the amount of the judgment requires an offset of payments to the original debt and consideration of extrinsic evidence. As such, CPLR 3215(i) is not applicable in this case and a judgment issued by a clerk would have been a nullity.

Pursuant to CPLR 3215(a), a plaintiff may seek a default judgment against a defendant who fails to appear or answer. A plaintiff moving for a default judgment against a defendant must submit a proof of service of the summons and complaint, proof of the facts constituting the [*3]cause of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]; Rivera v Corrections Officer L. Banks, 135 AD3d 621, 622, 25 N.Y.S.3d 77 [1st Dept 2016]). While the standard of proof required is not stringent, the movant is nevertheless required to proffer proof sufficient "to enable a court to determine that a viable cause of action exists" (see Bigio v Gooding, 213 AD3d 480 [1st Dept 2023] citing Woodson, 100 NY2d 62, 70-71 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]). "The quantum of proof necessary to support an application for a default judgment is not exacting; however, some firsthand confirmation of the facts forming the basis for the claim must be proffered" (see Feffer v Malpeso, 210 AD2d 60, 619 N.Y.S. 2d 46 [1st Dept 1994]; Guzetti v City of New York, 32 AD3d 234, 235, 820 N.Y.S.2d 29 [1st Dept 2006]; see also Woodson, 100 NY2d 62, 70-71 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]).

In support of its Motion, Plaintiff submitted 1) Affirmation of Plaintiff's counsel, attesting to the terms of the Stipulation and Defendant's failure to comply with such terms; 2) a copy of the Summons and Complaint and the Affidavit of Service (Exhibit A); 3) a copy of the Stipulation (Exhibit B); 4) a copy of the Payment History (Exhibit C); 5) a copy of the Notice of Default (Exhibit D); 6) Non-Military Affirmation of Plaintiff's counsel and a copy of a Status Report from the Department of Defense Manpower Data Center (Exhibit E).

Here, Plaintiff failed to submit an affidavit of merit by Plaintiff providing "some firsthand confirmation of the facts" that attest to Defendant's default and payment history. Rather, Plaintiff submitted an attorney's Affirmation of Facts, someone with no personal knowledge of the facts giving rise to the instant action, which is "purely hearsay" and "devoid of evidentiary value" (see Beltre v Babu, 32 AD3d 722, 723, 821 NYS2d 69 [1st Dept 2006] citing Feffer, 210 AD2d 60, 619 N.Y.S. 2d 46 [1st Dept 1994]; see also Joosten v Gale, 129 AD2d 531, 535, 514 NYS2d 729 [1st Dept 1987]).

For similar reasons, a review of the documentation of Defendant's payment history as provided in Exhibit C, did not provide adequate details as to the payments made, as it simply stated the payment date, the amount allegedly paid by Defendant on each date and the total amount paid by Defendant. It is not clear on the face of such documentation to determine who maintained the record of Defendant's payment history, and whether it was made pursuant to "an established procedure for the routine, habitual, systematic making of records that would qualify them as trustworthy accounts" that were "regularly relied on" by Plaintiff (see People v Kennedy, 68 NY2d 569, 579-580, 503 N.E.2d 501, 510 N.Y.S.2d 853 [1986]; see also CPLR 4518[a]). Therefore, Plaintiff's Motion for default judgment is denied, as Plaintiff failed to establish its prima facie case.

Accordingly, it is

ORDERED that Plaintiff's Motion for default judgment is DENIED without prejudice.

This constitutes the DECISION and ORDER of the Court.