“Just Once”[1] (The Second Department Reiterates That There is No Need to File an Answer to a Supplemental Complaint When an Answer was Interposed to the Original Complaint)
Print Article- Posted on: Feb 28 2025
“Just Once,” which is an appropriate title for today’s article, is a James Ingram song from Quincy Jones’ “The Dude” album; an album I have listened to many times throughout, and after, college.
Today we will discuss U.S. Bank National Assoc. v. Deblinger, a mortgage foreclosure[1] action that resulted in a decision on February 26, 2025, by the Appellate Division, Second Department. In 2017, the lender commenced an action to foreclose a mortgage after an alleged default by the borrower. The borrower served an answer. Subsequently, the lender filed a supplemental summons and an amended complaint, which did not make any new allegations against the borrower. The lender then filed a second supplemental summons and second amended complaint, which, too, failed to make any new allegations against the borrower. The borrower, who did not serve an answer to either of the amended complaints, opposed the lender’s motion for a default judgment[2] against her and for an order of reference. The motion court granted the lender’s motion and appointed a referee to compute. The Borrower appealed.
The Second Department reversed. In so doing, the Court noted that on a motion for a default judgment pursuant to CPLR 3215, a plaintiff “is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant’s default in answering or appearing.” (Citations and internal quotation marks omitted.)[3] See also Knudsen v. Green Machine Landscaping, Inc., 223 A.D.3d 792, 792-93 (2nd Dep’t 2024); Bigio v. Gooding, 213 A.D.3d 480, 481 (1st Dep’t 2023); U.S. Bank Nat. Ass’n v. Wolnerman, 135 A.D.3d 850, 850-51 (2nd Dep’t 2016). The Court, in finding that the lender failed to meet its burden of proving a default, stated:
Here, the [lender] failed to meet its burden of demonstrating that the [borrower] had defaulted in answering or appearing. CPLR 3025(d) states that, “[e]xcept where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented.” Generally, an amended complaint supersedes the original pleading, the defendant’s original answer has no effect, and a new responsive pleading is substituted for the original answer. In contrast, a supplemental complaint does not supersede the original pleading and the answer which had already been served at the time the supplemental pleading was interposed remains in effect. Here, insofar as asserted against the [borrower], the purported amended complaints merely repeated the same allegations against the [borrower] that were made in the original complaint and, thus, are properly characterized as supplemental complaints. As the [borrower] had already answered the allegations asserted, no further answer was required within the meaning of CPLR 3025(d). Thus, the defendant was not in default [because she was required to answer “Just Once”]. [Citations and some internal quotation marks omitted and hyperlinks added.][4]
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 written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issues that may be of interest you.
[2] This Blog has written about default judgments in mortgage foreclosure actions. See, e.g., [here],[here], [here], and [here].
[3] This BLOG has addressed the necessary proof on a motion for a default judgment [here].
[4] Apparently, the holding springs from the notion that “the supplemental complaint may be considered as in addition to the original complaint.” Pimsler v. Angert, 1 A.D.2d 783 (2nd Dep’t 1956); see also Mendrzycki v. Cricchio, 58 A.D.3d 171, 175 (2nd Dep’t 2008).
[1] For some of this BLOG’s younger readers, here is a YouTube link to the song.
