___ 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.
This result and its rationale should be carefully noted. The defendant in this case moved promptly to vacate the default judgment and order of reference. Since, however, the lack of notice left the court without jurisdiction to entertain the motion and grant the order, the motion could have been made at any subsequent time. A plaintiff moving for a default judgment should carefully consider whether the non-answering defendant is nonetheless entitled to notice by virtue of having appeared in the action. A dismissal motion is such an appearance, as illustrated here. Has the non-answering defendant served a notice of appearance? If so, he is entitled to notice of the default judgment motion (Tsionis v Eriora Corp.)
I confess that I have never understood or accepted the practice of “marking a motion off the calendar.” There is no authority in the CPLR or the Uniform Rules for this procedure. Any resemblance to marking an action off the trial calendar is illusory, since a marked-off action has its own independent existence, and the procedures for achieving restoration are well-established. A motion, by contrast, has no independent existence. Marking it off the motion calendar leaves it in limbo, pending and undecided in perpetuity. This violates CPLR 2219, which requires a decision within 60 days (20 if a provisional remedy is involved). A mere notation on a calendar that the motion was “marked off” is not a substitute for a decision. If the court is not willing to grant or entertain the motion, for any reason, the proper response is to issue an order denying it.