The Second Department has recently ruled a plaintiff’s failure to provide a defendant who has appeared in an action, but subsequently defaulted, with notice of a motion to enter a default judgment, is a jurisdictional defect.
In Paulus v. Christopher Vacirca, Inc., 2015 WL 1542183 (2nd Dept. 2015), the defendant-appellant had filed a pre-answer motion to dismiss the complaint pursuant to CPLR 3211, which resulted in the lower court dismissing five of the six causes of action asserted against the defendant. The court then directed the defendant to file an answer within 30 days. When the defendant failed to answer the remaining cause of action as directed, the plaintiffs obtained a default judgment against him. The defendant then moved to vacate the default, arguing, among other things, that his failure to answer was excusable because he believed that the plaintiffs were required to serve an amended complaint, after which he had 30 days to answer.
In addition, the defendant argued that the default judgment was defective because the plaintiffs had failed to serve his attorney with five days’ notice of their motion for leave to enter a default judgment, as required by CPLR 3215(g)(1).