Sometimes an Appearance is Not Enough

By: Jonathan H. Freiberger

This BLOG has previously addressed formal and informal appearances. As explained, it is axiomatic that a “plaintiff appears [in an action] merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall, 185 A.D.3d 1006, 1007 (2^nd Dep’t 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. CPLR 320(a), which sets forth, inter alia, the various ways a defendant can formally appear in an action, provides that “[t]he defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer.” See also Deutsche Bank, 185 A.D.3d at 1007-8 (describing the ways in which a defendant appears and the pitfalls of failing to do so). New York courts also recognize “informal appearances.” An informal appearance occurs “by actively litigating the action before the court.” Bank of New York Mellon v. Taylor, 230 A.D.3d 457, 458 (2^nd Dep’t 2024) (citations and internal quotation marks omitted); see also Bharath v. Sitaram, 246 A.D.3d 859, 861 (2d Dept. 2026).[1]

Service of a notice of motion pursuant to CPLR 3211(a) or (b), when made prior to the time that the responsive pleading was otherwise due to be served, extends the defendant’s time to serve an answer until ten days after service of notice of entry of the order deciding the motion. CPLR 3211(f); U.S. Bank National Assoc. v. Gilchrest, 172 A.D.3d 1424, 1426 2d Dept. 2019).

As to notices of appearance, it has been noted that they are simple documents that notif[y] the plaintiff that a defendant is appearing in the action” and “[are] the response[s] generally reserved for the situation in which the plaintiff’s process consisted of a summons with notice as authorized by CPLR 305(b).” Deutsche Bank, 185 A.D.3d at 1008 (citation and internal quotation marks omitted; hyperlink added).

Notwithstanding the filing of a notice of appearance, a defendant must still timely respond to the complaint by filing an answer or making a motion pursuant to CPLR 3211(a) or (b) in order to avoid default in answering. Deutsche Bank, 185 A.D.3d at 1008; 21st Mortgage Corp. v. Raghu, 197 A.D.3d 1212, 1215 (2d Dept. 2021).

These issues were addressed by the Appellate Division, Second Department, on July 15, 2026, in 55-57 Hester Grocery, Inc. v. Queens Metro Stop, Inc., a breach of contract action. The plaintiff in 55-57 filed its action and the defendant subsequently filed a notice of appearance. However, the defendant never filed an answer to the complaint. Almost two years after the defendant filed its notice of appearance, the plaintiff moved for leave to enter a default judgment. Over the defendant’s opposition, the motion court granted the motion. Thereafter, the defendant moved pursuant to CPLR 5015 to vacate the default, which motion was denied by the motion court. The Defendant appealed.

The Second Department affirmed. The Court stated that “[a]lthough a defendant ‘appears’ within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of a notice of appearance does not absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211.” (Citations and internal quotation marks omitted.) The Court rejected the defendant’s claim that its formal and informal appearance were sufficient to vacate the default and stated that the “filing of a notice of appearance and opposition to the plaintiff’s prior motions did not cure the defendants’ default.” (Citations omitted.)

The Court also found that the defendant’s motion pursuant to CPLR 5015 was properly denied. The Court noted that to succeed on its motion, the defendant was required to “provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.” (Citations omitted.) The Court held that while “law office failure” can be a “reasonable excuse,” “conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse.” (Citations and internal quotation marks omitted.)

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] This BLOG has discussed informal appearances on numerous occasions. See, e.g., “Informal Appearances,” “The Pitfalls of the Informal Appearances and the Benefit of the Corporate Veil,” “The Second Department Holds, as a matter of First Impression that a Party’s Attendance at a Mandatory Settlement Conference Pursuant to CPLR 3408 Does Not Constitutes an Appearance for the Purposes of CPLR 3215(g)” and “Execution of Two Stipulations Proves Fatal to Defendant’s Motion for Relief Under CPLR 317”.