The default should have never been entered as the purported application for leave to enter a default was submitted more than one year after the time to answer, move or otherwise appear expired. Having entered an improper default, the carrier now has to prove lack of service otherwise the improper default must remain. This is wrong and dissent is correct.
There was a recent case where the Plaintiff failed to abide by CPLR 3215(g)(4) and the court, without resort to the 5015 factors, reversed the motion denying the application without resort to the 5015(a) factors. The only basis I can imagine for allowing this to stand is the Court of Appeals holding that 3215(f) is not jurisdictional, therefore, a default that was technically improperly entered could only be vacated through showing 5015(a) applies.
3215(c) is mandatory and appears to be jurisdcitional.
The other observation is that since defendant did not raise it below, the issue was not before the Court. But wouldn’t CPLR 3215(c) be an issue, due to its mandatory sua sponte effect, that a court could not avoid on appeal, which is a known exception to the civil preservation requirement?
