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.

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