Diagnostic Medicine, P.C. v Auto One Ins. Co., 2019 NY Slip Op 51891(U)
Five says notice to settle a judgment is necessary on default when the party previously appeared.
“A defendant which appears in an action, but subsequently defaults “is entitled to at least five days’ notice of the time and place” of an application to the court or the clerk for leave to enter a default judgment (CPLR 3215 [g] [1]; see Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015]). In the case at bar, plaintiff’s application for the entry of the judgment was dated March 23, 2016 and apparently served on defendant on March 23, 2016. The judgment was entered the following day. While a court may, upon such a default, dispense with the notice requirement (see CPLR 3215 [g] [1]), there is no indication in the record before us that the Civil Court had exercised such discretion. Plaintiff’s failure to give defendant notice as required by CPLR 3215 (g) (1) deprived the court of jurisdiction to entertain plaintiff’s application to enter the judgment”
” However, where a judgment is vacated due to a jurisdictional defect of improper notice, such a defect “does not, standing alone, entitle [defendant] to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits”
