One of the things I love about legal research is the way one issue leads to another. This series of posts started with two cases about motions for default judgments, and the jurisdictional consequences of failing to give notice where it is required. (Deutsche Bank Natl. Trust Co. v Gavrielova, Here and Paulus v Christopher Vacirca, Inc., Here) These discussions have already led to a side issue about marking motions “off calendar.” Here is another side issue, involving “informal appearances,” that is, actions which will be the functional equivalent of an appearance, even though the defendant has not made a formal appearance as specified in CPLR 320. That is, he has not served a formal notice of appearance, an answer, or a motion to dismiss.
Now, in both of our main cases, the defendants made a formal appearance by moving to dismiss under CPLR 3211 (a), but then failed to answer. They were therefore clearly entitled to notice of the motion for default judgments. Whether or not the defendants had appeared was not an issue. Reading some of the cases cited by these decisions, however, we come across fact patterns where the appearance was not so clear.
In some cases, the defendant’s “informal appearance” will entitle him to notice of a default motion. Since our recent cases have held that lack of notice renders the default judgment jurisdictionally defective (at least in the Second Department) a plaintiff who relies on the lack of a formal appearance and moves without notice may be unpleasantly surprised.
In others, it will be the defendant who is unpleasantly surprised, when he finds that his “informal appearance” has been sufficient to waive his objections to personal jurisdiction.
So, in Leader Fed. Bank for Sav. v. Van Tienhoven, 262 A.D.2d 1078, 692 N.Y.S.2d 258 [4th Dept., 1999], defendants made no formal appearance. Their counsel, however, sent a letter to plaintiff’s counsel. The contents of the letter are not discussed, but the letter was held to have been equivalent to a notice of appearance, thus entitling the defendants to notice of the default motion.
The Fourth Department’s later decision in Dime Savings Bank v Higner, 281 AD2d 895 [4th Dept., 2001], followed a similar pattern. The letter here was from the defendant directly to plaintiff’s counsel. Defendant denied the allegations of the complaint, claiming to have made uncredited payments on the mortgage. He further specified his attorney, directing the plaintiff to communicate with that attorney in the future. The Fourth Department held that this letter was sufficient to constitute an answer, or at least a notice of appearance. So, again, the defendant was entitled to notice of a default judgment motion.
On the other hand, in Agway v Curtis, 195 A.D.2d 1077, 601 N.Y.S.2d 735 [4th Dept., 1993], plaintiff sent two letters to the plaintiff’s attorney, asking for a statement of his account, but this was not considered sufficient to make an informal appearance.
What does it take to make an “informal appearance”? In Parotta v Wolgin, 245 A.D.2d 872, 666 N.Y.S.2d 341 [3rd Dept., 1997], a claims representative from the defendants’ insurer, “evidently” acting for the defendants, obtained extensions of the time to answer and preliminary disclosure. The defendants then served a timely answer raising an objection to personal jurisdiction. The Third Department observed that the actions of the claims rep were on the one hand an informal appearance precluding a default judgment, and at the same time insufficient to rule out the jurisdictional objection.
It is difficult to see why the court stated that the informal appearance would rule out a default judgment. Does this mean in all cases? What if the defendant had failed to answer? The key to understanding this observation may come from the case it cites, Cohen v Ryan, 34 AD2d 789 [2d Dept., 1970], where the point was that the defendant’s letter to the plaintiff ruled out a default judgment without notice. Understood in this light, the case falls squarely within the category of Leader and Dime. Second Department cases continue to hold this way. See, Pendergrast v St. Mary’s Hospital, 156 A.D.2d 436, 548 N.Y.S.2d 711 [2 Dept.,1989], and Castillo v JFK Medport, Inc., 116 A.D.3d 899, 983 N.Y.S.2d 866 [2d Dept., 2014]. Or, more simply, the point may have been that the defendant had participated sufficiently that he should have been allowed to answer, as happened in City of Newburgh v 96 Broadway LLC, 72 A.D.3d 632, 897 N.Y.S.2d 720 [2d Dept., 2010].
You may also ask how the defendant in Parotta retained the jurisdictional objection despite having appeared, informally or not? Pursuant to CPLR 320 (b), “an appearance . . . is equivalent to personal service of the summons upon him, unless an objection to jurisdiction . . . is asserted by motion or in the answer”, thus leaving the objection available while the time to answer is open.
We may conclude here that where the summons has provoked any response from the defendant, even a simple letter protesting his innocence, but not an answer, a careful plaintiff will proceed to a default judgment by way of notice. The added difficulty of giving notice is not great, and the potential vulnerability of a judgment obtained without notice is so significant to warrant the rule of “better safe than sorry.” If, for example, plaintiff has received a letter from an attorney which says “please serve all further papers in this action upon this office,” but does not explicitly state “this office hereby appears in this action for the defendant,” the verbiage may fall short of the canonical notice of appearance. Still, the cases indicate that it is enough to require notice before a default judgment motion.
As to consequences of informal appearances on defendants, there have been cases where the informal appearance was held to waive any objection to personal jurisdiction.
In Sessa v Bd. of Assessors, 46 AD3d 1163, 847 NYS2d 765 [3rd Dept., 2007] the Third Department held that substantial participation in the litigation would be sufficient to establish an informal appearance, as would “any actions which amounted to a voluntary submission to Supreme Court’s jurisdiction” thus barring a later motion to dismiss for lack of jurisdiction. The case was an RPTL Article 7 tax assessment challenge, which presents some specialized rules allowing an extended time to answer, but the main point is of general application. During the extended pre-answer period, the respondent participated in pre-trial conferences and exchanges of appraisals, at one point sending a letter to the court asking for an order scheduling pre-trial proceedings. After all this, the respondent finally (and timely) moved to dismiss, and indeed it appears that service of process was not properly made. The court held that the respondent’s “significant activity” constituted an informal appearance, acquiescing in the court’s jurisdiction. With particular regard to the letter to the court, the Third Department recognized that there is no bright-line rule as to when a letter constitutes an informal appearance. However, where the letter discusses the merits and seeks or consents to action by the court, and where it indicates participation in the action without jurisdictional objection, it can constitute an informal appearance by itself. The letter in Sessa satisfied those criteria. This opinion, by the way, provides the deepest and most theoretical explanation of the kinds of activity that will constitute an informal appearance.
There are still other paths to an informal appearance sufficient to waive jurisdictional objections. In Taveras v City of New York, 108 AD3d 614 [2d Dept., 2013], the action was against the City, and also against two individual employees. The individuals were initially sued as John Does, but the summons and complaint were amended after disclosure of their actual names. The individuals were never served with process. Nonetheless, they were produced for deposition, the City’s attorney appeared on their behalf, and limited questioning as to the circumstances of their hiring by noting that the City conceded that their acts in question were taken during the course of their employment. This was considered sufficient participation in the action to constitute an informal appearance, waiving the individuals’ objections to personal jurisdiction. Consequently, their eventual motion to dismiss on jurisdictional grounds was properly denied.
Of course, there are many things a defendant can do which can be described as “substantial participation” in an action yet will not waive jurisdictional objections. In Benifits By Design Corp. v. Contractor Management Services, LLC, 75 A.D.3d 826, 905 N.Y.S.2d 340 [2d Dept., 2010], defendant removed the action to federal court by a notice of removal which explicitly noted that no defenses or counterclaims were waived. Defendant moved to dismiss in federal court, but the motion was mooted when the parties stipulated to return the action to state court. That stipulation was also explicitly without prejudice to any right the defendant may have had to move to dismiss. With the action back in state court, the defendant moved to dismiss for lack of personal jurisdiction, and the court held the defense had not been waived. This case was followed by the Second Department in Magwitch, LLC v Pusser’s Inc., 84 AD3d 529, 923 NYS2d 455 [2d Dept., 2011].