Paulus v Christopher Vacirca, Inc., 2015 NY Slip Op 02944 (2d Dept. 2015)
For the procedural nuts out there, this case holds that notice of the entry of a default judgment must always be on motion to someone who appears in an action. When is this relevent? When an answer is stricken; when an answer is not interposed after denial of a pre-answer motion; the failure to reply to a counterclaim, etc.
“For these reasons, we hold that the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment. While this defect requires vacatur of the judgment, it does not, standing alone, entitle the appellant to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits (see Stephan G. Gleich & Assocs. v Gritsipis, 87 AD3d 216, 224-225). Since the appellant has failed to establish a basis to be relieved from his underlying default in failing to answer, that underlying default remains intact. Accordingly, the appellant is entitled only to statutory notice of any future motion for leave to enter a default judgment.”
