Notice of Default (New York)

NOTICE OF DEFAULT AND DEMAND FOR CURE — STATE OF NEW YORK

New York-specific notice of default template. Incorporates CPLR statutory interest, N.Y. U.C.C. Article 9 secured transactions notice requirements, and New York acceleration and foreclosure principles.

NEW YORK PRE-ISSUANCE CHECKLIST

☐ Contract Type. Identify whether the underlying agreement is (a) a general commercial contract (New York common law + CPLR); (b) a sale of goods under N.Y. U.C.C. Art. 2; (c) a secured transaction under N.Y. U.C.C. Art. 9; (d) a lease of goods under N.Y. U.C.C. Art. 2-A; (e) a real property lease (RPAPL); or (f) a mortgage loan (RPAPL § 1304 90-day pre-foreclosure notice for home loans).

☐ Pre-Foreclosure Notices. For residential mortgages, RPAPL § 1304 requires a 90-day pre-foreclosure notice with specific statutory language and lists of housing counselors.

☐ U.C.C. § 9-611 Notice. For disposition of collateral securing a commercial transaction, the secured party must send a reasonable authenticated notice. Ten (10) days before disposition is presumptively reasonable under § 9-612(b) for commercial transactions.

☐ Acceleration Under CPLR § 213(2). Under Freedom Mortg. Corp. v. Engel, 37 N.Y.3d 1 (2021), and legislative response in the Foreclosure Abuse Prevention Act (2022 N.Y. Laws ch. 821), an acceleration — once validly exercised — starts the six-year SOL and cannot be unilaterally revoked.

☐ Written Acknowledgment of Debt. N.Y. Gen. Oblig. Law § 17-101 — a written signed acknowledgment restarts the limitations period.

☐ Usury Compliance. Contractual interest rate must not exceed 16% per annum (civil usury, Gen. Oblig. Law § 5-501) or 25% (criminal usury, Penal Law § 190.40).

1. NOTICE HEADER

NOTICE OF DEFAULT AND DEMAND FOR CURE

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA [E-MAIL / OVERNIGHT COURIER / PERSONAL SERVICE]

To (Defaulting Party):
[________________________________] (Legal Name)
[________________________________] (Address for Notice per Agreement § ____)
Attn: [________________________________]

From (Non-Defaulting Party):
[________________________________] (Legal Name)
[________________________________] (Address)
c/o [________________________________], Esq.
[________________________________] (Firm / NY Office)

Re: [________________________________] (the "Agreement"), dated [__/__/____]

2. RECITALS

A. The parties are party to the Agreement for the purpose of [________________________________].

B. Under Section [____] of the Agreement, Defaulting Party is required to [________________________________].

C. Under Section [____] of the Agreement ("Events of Default"), specific events trigger default and acceleration rights.

D. Non-Defaulting Party has determined that one or more Events of Default have occurred and are continuing, and hereby delivers formal notice in strict compliance with Section [____] of the Agreement and applicable New York law.

3. EVENTS OF DEFAULT

Non-Defaulting Party hereby gives notice of the following Events of Default, each constituting a material breach:

3.1 Payment Default. Defaulting Party failed to pay $[________] due on [__/__/____] under Section [____] of the Agreement, and such amount remains unpaid as of the date hereof.

3.2 Performance Default. Defaulting Party failed to [describe unmet non-monetary obligation] required by Section [____] by the deadline of [__/__/____].

3.3 Covenant Default. Defaulting Party breached the following affirmative/negative covenants:

• [________________________________]
• [________________________________]

3.4 Representation Default. The following representations or warranties made in Section [____] have proven materially false:

• [________________________________]

3.5 Cross-Default. [If applicable] Defaulting Party is in default under [other agreement], triggering cross-default under Section [____] of the Agreement.

3.6 Insolvency. [If applicable] Defaulting Party has: ☐ filed a voluntary bankruptcy petition; ☐ had an involuntary petition filed against it; ☐ made a general assignment for the benefit of creditors; ☐ had a receiver appointed; ☐ admitted in writing inability to pay debts as they become due.

4. AMOUNTS DUE AND OWING

As of the date of this Notice, Defaulting Party owes Non-Defaulting Party the following amounts (the "Obligations"):

Additional amounts continue to accrue daily at $[________]/day until paid.

5. CURE PERIOD AND MANNER OF CURE

5.1 Cure Period. Pursuant to Section [____] of the Agreement and applicable New York law, Defaulting Party has [____] days from receipt of this Notice (the "Cure Period") to fully cure each Event of Default. The Cure Period expires at 5:00 p.m. Eastern Time on [__/__/____].

5.2 Manner of Cure. To effect a valid cure, Defaulting Party must, within the Cure Period:

a. Remit the Obligations in full by wire transfer of immediately available funds to:
Bank: [________________________________]
ABA/Routing: [________________________________]
Account No.: [________________________________]
Reference: [________________________________]

b. Cure Non-Monetary Defaults by fully completing all required actions and providing written, certified evidence satisfactory to Non-Defaulting Party;

c. Reimburse Enforcement Costs for all reasonable attorneys' fees, collection costs, and out-of-pocket expenses incurred;

d. Provide Compliance Certification executed by an authorized officer, under penalty of perjury, attesting to full cure.

5.3 Partial Cure Insufficient. Partial or conditional payments will not constitute a cure under N.Y. U.C.C. § 1-308 and will not effect accord and satisfaction absent a separate written release signed by Non-Defaulting Party.

6. ACCELERATION AND REMEDIES UPON NON-CURE

6.1 Acceleration Notice. Subject to expiration of the Cure Period without cure, Non-Defaulting Party hereby expressly, unequivocally, and unconditionally accelerates, and declares immediately due and payable, the entire unpaid balance of the Obligations, including all principal, accrued interest, late charges, default interest, and enforcement costs, pursuant to Section [____] of the Agreement and N.Y. U.C.C. § 1-309 (where applicable).

[// CAUTION: Under Freedom Mortgage Corp. v. Engel, 37 N.Y.3d 1 (2021), and the Foreclosure Abuse Prevention Act (2022 N.Y. Laws ch. 821), acceleration triggers the six-year SOL under CPLR § 213(4) and cannot be unilaterally revoked. Confirm intent to accelerate before sending.]

6.2 Remedies. Upon expiration of the Cure Period, Non-Defaulting Party will pursue, without further notice except as required by statute or the Agreement, all remedies available under the Agreement, at law, and in equity, including:

a. Litigation in the Supreme Court of the State of New York, [________________________________] County, or the Commercial Division where jurisdictional thresholds are met (22 NYCRR § 202.70), seeking judgment for the Obligations;

b. Prejudgment Interest at nine percent (9%) per annum under CPLR §§ 5001, 5004, from the earliest ascertainable date the cause of action existed;

c. Attachment under CPLR Art. 62 where applicable;

d. Self-Help Repossession of secured collateral under N.Y. U.C.C. § 9-609 (peaceful entry) [if secured];

e. Disposition of Collateral under N.Y. U.C.C. § 9-610 following further notice compliant with N.Y. U.C.C. § 9-611 (not less than 10 days for commercial transactions) [if secured];

f. Specific Performance / injunctive relief under CPLR § 6301;

g. Termination of the Agreement effective [__/__/____];

h. Offset and Recoupment against any amounts owed by Non-Defaulting Party to Defaulting Party;

i. Attorneys' Fees where authorized by Section [____] of the Agreement or applicable law.

6.3 Commercial Reasonableness. Any disposition of collateral will be conducted in a commercially reasonable manner under N.Y. U.C.C. § 9-610(b).

7. RESERVATION OF RIGHTS AND NO WAIVER

7.1 No Waiver. Nothing in this Notice, and no act or omission of Non-Defaulting Party, shall constitute a waiver of any right, remedy, claim, or defense, all of which are expressly reserved.

7.2 Cumulative Remedies. All remedies are cumulative and may be exercised concurrently, successively, or in any order, in Non-Defaulting Party's sole discretion.

7.3 No Course of Dealing. Any forbearance, leniency, or accommodation shall not establish a course of dealing or modify the strict terms of the Agreement.

7.4 Reservation Clause. Non-Defaulting Party expressly reserves all of its rights pursuant to N.Y. U.C.C. § 1-308 without prejudice.

8. LITIGATION HOLD

Defaulting Party is hereby instructed to preserve all documents, ESI, communications, financial records, and any other materials relating to the Agreement and the Events of Default. Spoliation sanctions under CPLR § 3126 and New York common law (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33 (1st Dep't 2012); Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543 (2015)) will be sought for any destruction.

9. GOVERNING LAW AND FORUM

9.1 Governing Law. This Notice and any dispute arising hereunder or under the Agreement are governed by the substantive laws of the State of New York, without regard to conflict-of-law principles, pursuant to N.Y. Gen. Oblig. Law § 5-1401.

9.2 Forum. Exclusive jurisdiction is reserved in the Supreme Court of the State of New York, [________________________________] County, and the United States District Court for the [________________________________] District of New York, pursuant to N.Y. Gen. Oblig. Law § 5-1402 where applicable.

9.3 Limitations Period. The parties acknowledge that CPLR § 213(2) establishes a six-year limitations period for contract claims.

10. EXECUTION

IN WITNESS WHEREOF, the undersigned, being duly authorized, issues this Notice of Default as of the Effective Date.

[NON-DEFAULTING PARTY NAME]

By: ___________________________________
Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

Delivered by Counsel:

___________________________________
[________________________________], Esq.
[________________________________] (Firm)
NY Attorney Reg. No.: [________________________________]
[________________________________] (NY Address)

STATE OF NEW YORK AFFIDAVIT OF SERVICE

STATE OF NEW YORK )
) ss.:
COUNTY OF [______])

[Process server / affiant], being duly sworn, deposes and says: I am over 18 years of age and not a party to this matter. On [__/__/____], I served the foregoing Notice of Default upon [________________________________] by [method of service], at [________________________________].

___________________________________
[Affiant]

Sworn to before me this [__] day of [________________________________], 20__.

___________________________________
Notary Public, State of New York
Commission Expires: [________________________________]

Sources and References

• N.Y. CPLR § 213(2), § 5001, § 5004
• N.Y. U.C.C. § 9-609, § 9-611, § 9-612, § 1-308, § 1-309
• N.Y. Gen. Oblig. Law §§ 5-501, 5-1401, 5-1402, 17-101
• Freedom Mortg. Corp. v. Engel, 37 N.Y.3d 1 (2021)
• Foreclosure Abuse Prevention Act, 2022 N.Y. Laws ch. 821
• 22 NYCRR § 202.70 (Commercial Division)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. It must be reviewed and customized by a New York-licensed attorney before use.