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.