Plaintiff May Try Again to get a Judgment
Posted on May 22, 2026 by Barry Zalma
Just Because a Defendant Defaults Evidence is Needed to get a Judgment

Even on a Default Motion the Plaintiff Must Do More Than Rely on Conclusory Allegations.
Post number 5356

The Commissioners Of The State Insurance Fund v. Capcon Construction Industries Corp., Capcon Construction Supply Corp., Jab Masonry Corp., Agra Masonry Inc., Agra Industries Usa Corp, A & A Masonry Corp., Alexander Shvartsberg, Darren Caputo, Maryann Furman, Index No. 452680/2024, MOTION SEQ. No. 003, 2026 NY Slip Op 31767(U), Supreme Court, New York County (April 20, 2026)
FACTS

The Commissioners of the State Insurance Fund (SIF) had already obtained two judgments for unpaid workers’ compensation insurance premiums: one against A\&A Masonry Corp. and another, much larger one, against Agra Masonry Inc. SIF then brought this action against several related corporations and individuals, alleging that they all operated as a single de facto enterprise and that assets had been diverted to avoid collection of the Agra Masonry judgment.

As relevant to this motion, Agra Industries USA Corp. and A\&A Masonry Corp. did not answer the complaint. SIF moved for a default judgment against those two defendants on three claims:

Alter ego liability for the Agra Masonry judgment,
Attorneys’ fees and expenses under DCL § 276-a and/or State Finance Law § 18(5), and
Treble damages for insurance fraud under Workers’ Compensation Law § 96(2).

Although the motion was filed five days after the one-year deadline under CPLR 3215(c), SIF argued that the delay was minimal and that it had continuously litigated the case against the other defendants.
LAW

Under CPLR 3215, a plaintiff seeking a default judgment must provide proof of:

service of the summons and complaint,
the facts constituting the claim, and
the defendant’s default.

A default motion must generally be made within one year of the default, unless sufficient cause is shown for the delay.

To establish the “facts constituting the claim,” the plaintiff need only show enough facts to demonstrate a viable cause of action, but there still must be some firsthand evidentiary basis. A verified complaint can suffice if properly supported, but allegations made merely “on information and belief” without identified sources are often inadequate.
DISCUSSION

The court found that service and default were established. It also exercised its discretion to overlook the five-day lateness of the motion because the delay was de minimis, non-prejudicial, and the record showed that SIF had remained active in the litigation rather than abandoning its claims.

However, the court held that SIF failed to prove the facts constituting the claim. The alter ego allegations in the verified complaint were mostly based on information and belief and lacked sufficiently specific factual support or reliable sources. The verification by SIF’s legal collections director referred broadly to SIF records and communications, but the court found that too vague to satisfy the evidentiary burden for default judgment on alter ego liability.

Because the claims for attorneys’ fees and treble damages were pleaded as dependent on proving alter ego liability, those claims also failed once the first cause of action was found insufficiently supported.

The key issue was not timeliness, because the court was willing to excuse a slight delay. The decisive problem was proof. Even on a default motion, the plaintiff must do more than rely on conclusory allegations. Where alter ego liability is asserted, courts expect some concrete evidence of domination, commingling, misuse of the corporate form, or asset diversion.
CONCLUSION

The court denied SIF’s motion for default judgment without prejudice to renew. Although service was proper, the defendants defaulted, and the late filing was excused, SIF did not provide sufficient proof of the facts constituting its alter ego claim. As a result, the related claims for attorneys’ fees and treble damages also failed.
ZALMA OPINION

Most people, and many lawyers, believe that when a defendant defaults, it is an admission that the facts and charges made in the complaint was enough for a judgment. They are wrong. The Plaintiff must present convincing evidence before a judgment can be entered. The Plaintiff can try again because the order was made without prejudice.

(c) 2026 Barry Zalma & ClaimSchool, Inc.

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