This is the latest in a series of habeas corpus petitions, uniformly unsuccessful but notable nonetheless, brought by the Nonhuman Rights Project in an effort to have various captive chimpanzees recognized as “persons.” The strategy is that granting habeas relief to chimps necessarily entails recognition of their personhood, since habeas relief is available only to “persons.” As with the others, this petition has been dismissed, but this time not without achieving the minor victory of having obtained a hearing on the merits.
___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]
The defendant Bey in this foreclosure action moved to dismiss the complaint, but the motion was denied, without prejudice. His subsequent motion to renew was “marked off” the motion calendar, of which more shortly. He never answered. A few weeks after the motion was “marked off,” Plaintiff moved for a default judgment and an order of reference, without notice to Bey. The motion was granted. Bey then moved to vacate the default judgment and order of reference, and Supreme Court denied his motion.
The Appellate Division reversed. CPLR 3215 (g) provides that a defendant who has appeared in an action is entitled to notice of a motion for a default judgment, and this applies even where he has defaulted in answering. Since Bey’s motion to dismiss was one which had the effect of extending his time to answer, it constituted an appearance (CPLR 320[a]). Bey was consequently entitled to notice of the motion for a default judgment. The failure to give him notice was more than a mere error, but was a jurisdictional defect. Bey’s motion to vacate should accordingly been granted.