On February 21, 2024, the Second Department issued a decision in Bank of N.Y. Mellon Trust Co., N.A. v. Lagasse, 2024 NY Slip Op. 00889, holding that a party in default cannot assert a defense before the default is vacated, explaining:
Fire Island moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred. In an order dated April 4, 2019, the Supreme Court denied the motion and directed Fire Island to file an answer within 10 days of notice of entry of the order. Fire Island concedes that it filed notice of entry of the order on April 8, 2019, and did not file its answer until April 30, 2019—12 days late. The plaintiff served a notice of rejection of the late answer on May 2, 2019.
On or about August 6, 2020, the plaintiff moved, inter alia, for leave to enter a default judgment against Fire Island and for an order of reference. In opposition, Fire Island argued that the motion should be denied because the plaintiff failed to join unidentified tenants of the property as necessary parties to the action. In an order dated October 28, 2020, the Supreme Court, among other things, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against Fire Island and for an order of reference, and appointed a referee to compute the amount due to the plaintiff. Fire Island appeals.
Where the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she failed to appear within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default and obtaining leave to serve a late answer. Here, the plaintiff demonstrated, and Fire Island concedes, that Fire Island was in default within the meaning of CPLR 3215(a). Furthermore, Fire Island failed to move to vacate its default, and failed to even offer any excuse for that default. Therefore, since Fire Island failed to rebut the prima facie showing of default and obtain leave to serve a late answer, Fire Island’s default precludes its nonjurisdictional argument that the plaintiff failed to join necessary parties to the action.
(Internal quotations and citations omitted).