This shall constitute the Decision and Order of the Court. The original Decision and Order is being filed and entered with the County Clerk, along with transmission of the papers considered. The signing of the Decision and Order shall constitute entry and filing under CPLR Rule 2220 and counsel is relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. Papers considered: Papers and documents contained in NYSCEF Dkt. Nos. 1, 3, 7-13 Plaintiff Richard Ball (“plaintiff”) commenced this action to collect fines that he imposed under Agriculture and Markets Law §39 and §40. Defendant Kpshah Inc. (“defendant”) never answered, so plaintiff now moves for a default judgment. The story is straightforward. On two occasions in 2019, plaintiff conducted inspections of defendant’s retail food store. Plaintiff alleges that defendant flunked both inspections. Finally, plaintiff says that it fined defendant $600 and $1,200 for each respective violation and that defendant has failed to pay the fines. Defendant has neglected to answer these allegations or otherwise appear in this action. This dormancy sparked plaintiff’s default motion. CPLR 3215(f) governs default judgments. The statute divides plaintiff’s burden into three cantles: (1) the initiatory papers were properly served; (2) the defendant is in default; and (3) the facts constituting the plaintiff’s claim and amount owed. Plaintiff satisfies the first two elements. He demonstrates (with competent evidence) that defendant was properly served with the summons and that defendant has failed to timely make a demand for the complaint or otherwise appear. This leaves only the third prong — the facts establishing the claim (CPLR 3215[f]). Interestingly, 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]). Accordingly, “[a] plaintiff’s right to recover upon a defendant’s default in answering is governed by CPLR 3215… which requires that the plaintiff state a viable cause of action” (Walley v. Leatherstocking Healthcare, LLC, 79 AD3d 1236, 1238 [3d Dept 2010]). This standard is not stringent, amounting only to firsthand confirmation of the facts. Thus “[a]n applicant for a default judgment must submit either an affidavit asserting the facts comprising the claim or a verified complaint, so the court has nonhearsay confirmation of the factual basis constituting a prima facie case” (State v. Williams, 44 AD3d 1149, 1151-52 [3d Dept 2007]).1 “[G]ranting of a default judgment [is] not a mandatory ministerial duty” done robotically by a judge (Gagen v. Kipany Prods. Ltd., 289 AD2d 844, 846 [3d Dept 2001]). Rather, the legal conclusions to be drawn from facts “are reserved for the court’s determination [as well as] whether the applicant has met the burden of stating a prima facie cause of action” (Dyno, 260 AD2d at 698). So, what facts must plaintiff show to make out a prima facie case here. While there appears to be no direct authority that delineates the elements of plaintiff’s claim, it is, in its essence, about collecting a debt. Plaintiff alleges that defendant owes fines and that it has failed to remit payment. Therefore, plaintiff must demonstrate the following components of his claim: (1) issuance of a citation to defendant regarding the alleged violation; (2) the citation was either adjudicated or defendant failed to contest the violation; (3) the defendant was fined as a result; (4) the amount of the fine; and (5) the defendant has failed to pay the fine. To prove these five elements, plaintiff alleges two facts. First, on August 28, 2019, and on October 24, 2019, plaintiff conducted inspections of defendant’s operation and found conditions that violated the law (Attorney Persaud affirmation at 6). And second, pursuant to those inspections, plaintiff imposed penalties of $600 and $1,200 respectively (id at 7). These allegations are too thin to be helpful. To be sure plaintiff’s attorney affirms without documentation that Sanitary Inspection Reports were created and that fines were imposed (id at 6- 7). Even if these allegations were non-hearsay, they presume much and prove little. The affirmation silently presumes that citations were issued; but the affirmation absolutely neglects to tell the court if, when, where, and/or how any citations were served on defendant.2 Likewise, the affirmation says nothing about whether the citations were adjudicated or went uncontested. At its core, the affirmation lacks facts and documentation. It is not enough for plaintiff to simply state that violations existed and that fines were imposed and ask the court to infer the rest. The court will not. “A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment” (Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]).3 Even if plaintiff could circumnavigate the lack of evidence and could treat his unsubstantiated presumptions as concrete facts, he still faces an admissibility problem. CPLR 3215(f) requires a party moving for default to present admissible proof. Indeed, under no circumstances, in the absence of either a verified complaint or an affidavit by a person with knowledge, may a court enter a default judgment (Mullins v. DiLorenzo, 199 AD2d 218, 219-220 [1st Dept 1993]). Additionally, where admissible proof of a prima facie case is lacking, the court has the inherent “authority to sua sponte dismiss plaintiffs’ complaint upon their motion for a default judgment” (Martocci v. Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [3d Dept 2006]). Thus, the court will examine the admissibility of plaintiff’s proof. Plaintiff offers Attorney Persaud’s affirmation to make his case. “The affidavit of the plaintiff’s lawyer, unless the lawyer happens to have first-hand knowledge, should not be used to fulfill th[e] requirement [of CPLR 3215(f)]” (Siegel, NY Prac §295 at 553 [6th ed 2018]). However, the affirmation is not premised upon personal knowledge. Rather, it is based on the review of Agriculture and Markets records (Attorney Persaud affirmation at 1). Moreover, and quite strangely, the affirmation neither conveys which documents were reviewed nor attaches any records as exhibits. Consequently, since the affirmation lacks proof based upon personal knowledge, it provides no basis to grant the requested default judgment (333 Cherry LLC v. N. Resorts, Inc., 66 AD3d 1176, 1179 [3d Dept 2009]). To his credit, plaintiff recognizes the defect in his motion. So, he seeks refuge under CPLR 3215(f). CPLR 3215(f) alleviates the State of New York from the necessity of establishing default by an affiant who has personal knowledge of the facts. Rather, the statute permits a prima facie case to be made via “an attorney from the office of the attorney general who has or obtains knowledge of such facts through review of state records or otherwise” (CPLR 3215[f]). Therefore, the question becomes whether Attorney Persaud is “an attorney from the office of the attorney general” (CPLR 3215[f]). Attorney Persaud represents in her affirmation that she is “of counsel to Scott H. Wyner, Esq., Counsel of the New York State Department of Agriculture and Markets” (Persaud Affirmation at 1). Nowhere does she represent that she is an assistant attorney general — the reason is simple, she is not. Instead, plaintiff tries to indirectly cloak his attorneys with the authority of the Attorney General. To that end, plaintiff relies on the 31-year-old memorandum which authorized plaintiff’s attorneys to “commence and prosecute all new actions to recover civil penalties assesse[d] by [his] Department for violation of the Agriculture and Markets Law” (February 28, 1991 Memorandum by Assistant Attorney General John W Corwin ["Memo"] p 1). The Memo explains the legal basis for this authorization. It opines that Agriculture and Markets Law §8 and §44 allows the Attorney General to either “bring[] the action[] himself or [to] authoriz[e] the Counsel of the [Agriculture and Markets] Department to bring such action[] ” (id [emphasis added]). The Memo indicates that the Attorney General was exercising his discretion to allow the Agriculture and Markets Department itself to bring enforcement actions. The Memo, therefore, is limited. Nowhere does the Memo state that then Attorney General Elliot Abrams was appointing Agriculture and Markets Department attorneys as assistant attorney generals in perpetuity. Quite to the contrary, the Memo “authorize[s] the Department, through its Counsel, to commence [enforcement actions]” (id at p 2 [emphasis added]). Indeed, it would take an affirmative act of the Attorney General to appoint Department counsel as assistant attorney generals (Executive Law §62). However, the word “appoint” is not even used in the memorandum. To interpret the Memo as appointing Department counsel as assistant attorney generals would usurp the Attorney General’s power. More importantly, to permit or to condone such a usurpation would be an insult to the dignity of the office of Attorney General. The court declines to read the Memo in such a manner. Further, even if the Memo did appoint every single Department counsel as an assistant attorney general for the last thirty-one (31) years, any such appointment would still require a Department counsel to file with the Secretary of State an oath of office as an assistant attorney general. Public Officers Law §10 requires “[e]very officer shall take and file the oath of office required by law before he shall be entitled to enter upon the discharge of any of his official duties.” No such oath has been appended by plaintiff’s counsel to this default motion. Thus, nothing before the court indicates that plaintiff’s lawyers are vested with the power to act as assistant attorney generals. Consequently, plaintiff’s counsel cannot obtain the benefit that CPLR 3215(f) bestows upon the Attorney General’s office. This brings the case full circle. Plaintiff has failed to provide non-hearsay confirmation of the factual basis constituting a prima facie case as required by CPLR 3215(f). While the results may be disagreeable to plaintiff, the requirement that affidavits to sustain a default judgment be based on personal knowledge is not a difficult standard to meet. Municipal entities, corporations and individual citizens comply with this standard regularly. They do so much of the time by supplying certified documents that conform to the business record exception under CPLR 4518(a). There is nothing that prohibits plaintiff from doing likewise, and he should. Therefore, it is ORDERED that plaintiff’s motion for a default judgment is denied. The foregoing constitutes the Decision and Order of the court. Dated: March 7, 2023
