Another way to take a default

Citimortgage v Gill was the lender’s successful request for an order of reference after the trial court denied its ex parte motion. The opinion identifies no missing signature, and the borrowers were not the appellants.

Last reviewed: September 2026.

Legal Update (September 2026): RPAPL 1302-a preserves a lack-of-standing defense in covered home-loan foreclosures despite its omission from a responsive pleading or pre-answer motion. Its post-sale restriction has an exception for judgments entered on default. Gill predates this provision; its standing discussion is not a complete statement of current home-loan foreclosure law.

Review of the denied ex parte motion

In Gill (October 3, 2018), the Second Department treated Citimortgage’s appeal as an application under CPLR 5704(a). It granted the application and the lender’s motion for an order of reference.

The lender had submitted the mortgage, unpaid note, complaint, proof supporting the claim, a default affidavit from an authorized individual and proof of the failure to answer. The appellate court also held that the trial court should not have raised standing on its own in the circumstances then before it.

Section 5704(a) addresses review of orders made or refused without notice. Gill illustrates that procedure; it does not hold that an unsigned application is automatically curable or that every technical defect can be repaired on appeal. Citimortgage, not the borrowers, sought and obtained the appellate relief.

Reading Gill after RPAPL 1302-a

RPAPL 1302-a addresses an omitted standing defense in covered home-loan foreclosures. Applying it requires checking the loan and the procedural stage; Gill alone does not answer that current-law question. The historical result remains as reported.

Notice is a separate question. CPLR 3215(g) sets notice requirements for default applications. The lender’s use of an ex parte application in this case is not a universal rule for every court in a geographic region.

Jason’s original comment

Jason’s October 2018 practice observations follow unchanged. Gill does not identify a missing signature. The regional and federal-court observations are historical commentary, not a current filing checklist or a substitute for CPLR 3215(g).

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.

Frequently asked questions

What is the difference between ex-parte and noticed default motions in New York?

An ex parte application is made without notice to the adverse party; a noticed motion gives notice. Entitlement to notice depends on the governing statute and circumstances, not simply whether the court is upstate or downstate.

How does CPLR 5704(a) allow appellate courts to correct defective default applications?

CPLR 5704(a) authorizes specified review of ex parte orders. In Gill, the Second Department treated the lender’s appeal as an application under that section and granted its previously denied order of reference.

What happens when an ex-parte default motion lacks a required signature in New York?

Gill does not decide a missing-signature issue. The opinion concerns a denied order of reference and the trial court’s decision to raise standing on its own. A separate signature defect requires its own rule and record analysis.

Do upstate and downstate New York courts handle default applications differently?

Jason’s original note described practice differences he had encountered. Gill does not establish a statewide geographical rule. Check CPLR 3215(g) and the applicable court rules for the particular application.

What documents are required for a proper ex-parte default judgment application in New York?

Gill identified the mortgage, unpaid note, complaint, proof of the claim, an authorized person’s default affidavit and proof of the failure to answer. That foreclosure record is not an exhaustive checklist for every default application.

Connect to the Encyclopedia

Start with the default judgments and vacatur collection. Related case notes:

• Freedom Chiropractic: motion notice and an answer in the record
• Acupuncture Works: no explanation for delayed default proceedings
• Linden Equipment: why an abandonment motion was denied
• Lamar: a late answer before a default order existed

For review of a particular deadline, default or court order, contact the office.