Key Takeaway
New York courts handle default judgment applications differently by region, with upstate requiring ex-parte motions while downstate uses notice procedures.
Default judgment procedures in New York State vary significantly depending on which court you’re practicing in, creating confusion for attorneys who work across different jurisdictions. While downstate practitioners are familiar with making default motions on notice, upstate courts often require ex-parte applications. This regional inconsistency can lead to procedural complications, especially when technical requirements aren’t met. Understanding these variations is crucial for avoiding default judgment pitfalls that could derail your case.
The procedural differences become particularly important when dealing with federal courts, where Local Rules add another layer of complexity to the default process. When technical defects occur in ex-parte applications, courts have various remedial options available.
Jason Tenenbaum’s Analysis:
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.”
Key Takeaway
This case demonstrates how courts can remedy technical defects in default applications through CPLR 5704(a). When an ex-parte default motion lacks proper signatures or other formalities, appellate courts may treat the appeal itself as an application to correct the defect, providing practitioners with a potential avenue for relief from procedural missteps.
