Commercial Division Blog

Posted: November 17, 2021 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Category Default Judgment

Notice Required By C.P.L.R. 3215(g)(1) Limited to Applications for Entry of Default Judgment

On September 22, 2021, the Second Department issued a decision in 21st Mortgage Corp. v. Raghu, 197 A.D.3d 1212, holding that the notice required by C.P.L.R. 3215(g)(1) applies only to an application for entry of a default judgment and does not apply to a motion to confirm a referee's report and for judgment of foreclosure and sale, explaining:

The 2017 motion was not an "application" for a default judgment within the meaning of CPLR 3215 (b). Rather, the 2017 motion sought confirmation of the referee's report and entry of a judgment of foreclosure and sale, relief predicated on CPLR 4403 (see 22 NYCRR202.44). Since the 2017 motion was not an "application" within the meaning of CPLR 3215(b), the notice specified in CPLR 3215 (g) (1) was inapplicable to the 2017 motion, and notice of that motion was instead governed by the general notice provisions applicable to all motions (see CPLR 2103 [e]). As already observed, that section merely requires that notice be served on "every other party who has appeared " (id. [emphasis added]). Since, at the time of the 2017 motion, Fremont still had not made any appearance in the action, it was not, without more, entitled to notice of that motion (see id.; Nationstar Mtge., LLC v Azcona, 186 AD3d at616; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d at 1014; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437; Olympia Mtge. [*7] Corp. v Ramirez, 9 AD3d at401; Bank of N.Y. v Agenor, 305 AD2d at 438; Colombi v RWL Constr. Corp., 278 AD2d at191;Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d at 403; see generally Martine v Lowenstein, 68 NY 456, 458 [1877]).

We recognize that dicta from this Court may be read to indicate that CPLR 3215 (g) (1)notice is applicable to a motion to confirm a referee's report and for a judgment of foreclosure and sale (see Citimortgage, Inc. v Reese, 162 AD3d at 847-848). We now clarify that CPLR3215 (g) (1) merely applies to an application for a default judgment which must be made to determine the amount of damages due pursuant to CPLR 3215 (a) or (b). Once notice of such an application is provided, CPLR 3215 (g) (1) is satisfied, and, without more, the general notice provisions of CPLR 2103 (e) revert back into operation to govern any future requests for relief.

In sum, Courchevel failed to demonstrate that it was entitled to notice of the plaintiff's 2017 motion. Since Courchevel failed to establish sufficient grounds for vacating the order and judgment of foreclosure and sale, the Supreme Court properly denied its motion, inter alia, pursuant to CPLR 5015 (a) to vacate the order and judgment of foreclosure and sale.

The rules concerning entry of a default judgment are strict and can trip up even sophisticated parties. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning motion practice related to entry of a default judgment.

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