Paulus v Christopher Vacirca, Inc.,
128 AD3d 116 [2d Dept., 2015]
I have posted twice on Deutsche Bank v Gavrielova: once on the main issue of notice to appearing defendants who are nonetheless in default of answering, and again on the side issue of marking motions off the motion calendar.
The case noted here is the precedent followed in Deutsche Bank, and re-reading it prompts further thoughts on the rationale for the holding, and to note a departmental conflict on the issue.
The essential question is why the lack of notice to an appearing defendant is a jurisdictional defect, and not a mere error. The significance of that distinction is that a mere error does not leave the default judgment subject to later attack under CPLR 5015 (a)(1). If the defaulting defendant lacks either a reasonable excuse or proof of a meritorious defense, a mere procedural error provides no path to vacating the judgment. A jurisdictional defect renders the judgment a nullity, vulnerable to attack at any time.
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.