BILL NUMBER:  S5799

 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 to 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 Committee 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 within 120 days after learning of its
entry. No proof of merit shall be required of such a party in support
of the vacatur.

Following the required vacatur of the default judgment, the court will
              

have the discretion to consider the procedural posture of the case,
including, but not limited to (1) denial of the motion for default,
without prejudice, permitting the motion to be made again upon prior
notice; (2) considering the underlying motion for the default
judgment, with an opportunity for the defaulting party to be heard on
the motion; or (3) permitting the defaulting party to cure the
default.

The time to make the application to vacate the default judgment should
not be unlimited. One hundred twenty days after learning of the entry
of the judgment should give the defaulting party sufficient time to
contact a lawyer and make the application. This bright line time limit
is preferable to a more flexible standard, which may entail litigation
on whether the standard is met.

This measure would add an additional sentence at the end of 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
application is made within 120 days 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 apply to any applications made on or after
such effective date.

 2016 LEGISLATIVE HISTORY :

Senate 7207 (Sen. Bonacic) (committed to Rules) Assembly 9540 (M. of
A. Seawright) (advanced to 3rd Rdg., Cal. 557)