Key Takeaway
Freedom Chiropractic involved an answer in the record, inadequate motion notice and an earlier declaratory judgment. Read it beside Jason's 2020 question.
This article is part of our ongoing defaults coverage, with 90 published articles analyzing defaults issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Freedom Chiropractic obtained a default judgment, then lost it when the insurer moved to vacate. The published record includes an answer with an affidavit of mailing. That is a different case from a defendant who never appeared and a provider whose first default application was denied.
Last reviewed: September 2026.
Historical note: Freedom Chiropractic (June 5, 2020) affirmed vacatur of the provider’s default judgment and dismissal of its claim. It did not affirm an initial denial of the provider’s default motion.
The answer, motion notice and earlier judgment
The opinion records an answer mailed on July 21, 2017. The provider later moved on November 20 for a default judgment, asserting it had received no answer. The motion was returnable November 29. The court granted it unopposed, and judgment followed.
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The insurer’s successful vacatur motion raised inadequate notice and an earlier Supreme Court declaratory judgment determining that it owed no reimbursement for these claims. On appeal, the Appellate Term treated the inadequate motion notice as jurisdictional and also found an excusable default and a meritorious defense. It affirmed vacatur and summary judgment dismissing the provider’s complaint. The provider had won the first default application. This appeal upheld the later order taking that judgment away.
Notice depends on the application
CPLR 3215(g)(1) entitles an appearing defendant to at least five days’ notice of a default application. A nonappearing defendant is also entitled to that notice when more than one year has elapsed since default, unless the court orders otherwise. The section has additional notice provisions for specified circumstances.
That five-day provision is not a substitute for reviewing motion-service rules. Freedom Chiropractic applied CPLR 2214(b) and the mail extension under CPLR 2103(b)(2). A blanket statement that defaulting defendants lose all notice rights cannot explain this decision.
Jason’s original comment
Jason’s June 2020 question follows unchanged. Its premise needs the qualifications above: the opinion records an answer and proof of mailing, and CPLR 3215(g)(1) also protects certain nonappearing defendants. The opinion does not confirm his preservation prediction.
My question here is since a party in default (unless they previously appeared) is not legally entitled to a notice of an application for a default (whether made to the court or clerk), is this decision correct?
Guarantee the argument is not preserved and the Court did nit have to reach it.
Connect to the Encyclopedia
Start with the default judgments and vacatur collection. Related case notes:
- Citimortgage v Gill: review of a denied ex parte application
- Westchester Medical: knowledge of the receiving office’s mail procedures
- Acupuncture Works: no explanation for delayed default proceedings
- Linden Equipment: why an abandonment motion was denied
For review of a particular deadline, default or court order, contact the office.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Default Judgments in New York Practice
Default judgments arise when a party fails to answer, appear, or respond within required time limits. Vacating a default under CPLR 5015 requires showing a reasonable excuse for the failure and a meritorious defense or cause of action. In no-fault practice, defaults occur frequently in arbitration and court proceedings, and the standards for granting and vacating defaults have generated substantial case law. These articles analyze default practice, restoration motions, and the circumstances under which courts excuse procedural failures.
90 published articles in Defaults
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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