Relates to the failure to provide notice of a default judgment

Title of bill

An act to amend the civil practice law and rules, in relation to the failure to provide notice of a default judgment

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Advisory Committee on Civil Practice.

This measure would amend CPLR 3215(g)(1) to resolve questions under current law regarding the procedure for a party in default who was not provided notice. Also, we believe clarification of current case law is necessary to avoid reliance upon a decision holding that failure to give notice when required "is a jurisdictional defect that deprives the court of authority to entertain a motion for leave to enter a default judgment." Paulus v. Christopher Vacirca, 128 A.D. 3d 116, 126 (App. Div. 2d Dept., 2016). Our Advisory agrees with the decision insofar as it vacated the default, but believes it is error to rule that there was no jurisdiction. On their advice, we propose an amendment to require that the party in default who was not served with notice of the default shall be entitled to have the default judgment vacated if that party acts with due diligence upon learning of its entry. No proof of merit shall be required of such a party in support of the vacatur.

This measure would add an additional sentence at the end of CPLR 3215(g)(1) to read as follows : "When such notice is required but not given and judgment is entered, an application to vacate the judgment brought by the party entitled to receive notice shall be granted, provided such party acted with due diligence after having obtained knowledge of entry of the judgment."

This measure, which would have no fiscal impact on the State, would take effect immediately and shall apply to any application made on or after such effective date.

Legislative history

None. New proposal.