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.
Deutsche Bank Natl. Trust Co. v Gavrielova,
___ 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.
123 A.D.3d 694, 998 N.Y.S.2d 117 [2d Dept., 2014]
A defendant against whom no specific claims are made in the complaint need not serve an answer. There is, in fact, nothing in the complaint for him to deny. If he wishes not to default, he may simply serve a notice of appearance and thereby preserve his right to notice of all proceedings in the action. The notice of appearance may simply be served on the plaintiff, and there is no requirement that it be filed with the clerk of the court.
Here, the action was to foreclose on property owned by the defendant Eriora, and Soo I Young was named in the complaint as the holder of a second mortgage. Young was not required to answer, and his service of a notice of appearance was sufficient. The plaintiff moved for a default judgment without notifying Young, alleging that none of the defendants had appeared or answered. The motion was granted, and the resulting order determined that Young’s second mortgage was invalid and that he was barred from redeeming any interest in the property.
Since Young had, in fact, appeared via the notice of appearance, the order should have been vacated on his application.