Was This Defendant Really In Default? More On Marking Motions “Off”

Deutsche Bank Natl. Trust Co. v Gavrielova

___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]

An afterthought: I don’t think that the “defaulting” defendant in this case was in default at all.

I posted on this case on July 9, primarily on the issue of notice to the supposedly defaulting defendant. The plaintiff had failed to give notice of the motion for a default judgment to an appearing defendant, which was deemed to be a jurisdictional defect, leaving the resulting judgment open to attack, presumably in perpetuity. The defendant’s motion to vacate the default should therefore have been granted.

The path to default was interesting: the defendant had moved to dismiss under CPLR 3211, thus establishing an appearance and his entitlement to notice of any motion for default judgment. The motion was denied without prejudice, since the defendant had not included a copy of the complaint in the motion papers. The defendant renewed the motion but the motion was marked off, and the defendant thereafter failed to serve an answer.

As a secondary comment on the case, I noted my objection to the whole idea of a motion being marked off, rather than decided. It occurs to me now that the result of that procedure here is that the defendant was not, in fact, in default. Making the motion to dismiss extended his time to answer until ten days after service of notice of entry of the order deciding the motion (CPLR 3211 [f]). Since there has not been an order, the defendant’s time to answer remains open. The motion itself, in my view, remains pending and undecided.

Supreme Court’s order denying the motion to vacate notes that the motion was marked off in the Centralized Motion Part. By whom it was marked off, or by what authority, remains unclear. In any event, there was no order deciding the motion. For a clerk or referee to note the mark-off on the court’s internal records may suffice for the purposes of the court’s internal housekeeping, but it is not an acceptable substitute for an order.

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