Another way to take a defaultOctober 10, 2018

Citimortgage, Inc. v Gill, 2018 NY Slip Op 06512 (2d Dept. 2018)

Most practitioners are accustomed to the downstate method of taking a default: making a motion on notice.  The Local Federal Rules in the EDNY and SDNY also require placing the adverse party on notice when seeking a default following the ex-parte application to the clerk.

But in upstate New York, certain judges demand that the application be made ex-parte.  Another example of a uniform court system but uniform.  The interesting procedural issue that arises  is when the ex-parte application is not signed.

“ORDERED that on the Court’s own motion, the appeal from the order is deemed an application pursuant to CPLR 5704(a) to vacate the order and to grant the plaintiff’s ex parte motion; and it is further,

ORDERED that the application pursuant to CPLR 5704(a) is granted and the plaintiff’s ex parte motion for an order of reference is granted.”