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 Constitute an Appearance for Purposes of CPLR 3215(g)
Print Article- Posted on: Jan 2 2026
This BLOG has previously addressed the issue of a defendant’s appearance in an action – both formal and informal.[1] In that regard, we have noted that it makes sense that a “plaintiff appears in an action merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall, 185 A.D.3d 1006 (2nd Dep’t 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. Section 320(a) of New York’s Civil Practice Law and Rules (the “CPLR”), which sets forth, inter alia, the manner in which a defendant can 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.” An appearance pursuant to CPLR §320(a) is a formal appearance in the action. New York courts also recognize “informal appearances.” To constitute an informal appearance, a defendant must have engaged in “meaningful participation in the merits of the case.” Kurlander v. Willie, 45 A.D.3d 1006, 1007 (3rd Dep’t 2007) (citation omitted). An appearance, whether formal or informal, can have a significant impact on litigation. Among other things, an appearance could: preclude the entry of a default judgment by plaintiff; operate to preclude a defendant from interposing a defense of lack personal jurisdiction; and, preclude a defendant from having a complaint dismissed pursuant to CPLR 3215(c)v based on a plaintiff’s failure to seek a default judgment within a year of default.[2] Depending on the circumstances, a plaintiff or a defendant may argue that a defendant has “informally appeared” in an action.
Some residential mortgage foreclosure actions[3] are subject to mandatory settlement conferences. See, e.g., CPLR 3408(a)(1) and 22 NYCRR 202.12-a(b)(l). However, a defendant’s participation in settlement conferences does not constitute either a formal or an informal appearance because the defendant does “not actively litigate the action before the Supreme Court or participate in the action on the merits.” Wells Fargo Bank, N.A. v. Martinez, 181 A.D.3d 470, 471 (1st Dep’t 2020) (citations, internal quotation marks and brackets omitted); see also US Bank Nat. Ass’n v. Kail, 189 A.D.3d 1652, 1654-55 (2nd Dep’t 2020) (same, relying on Martinez); PennyMac Corp. v. Weinberg, 203 A.D.3d 1061, 1063 (2nd Dep’t 2022).
Against this backdrop, we discuss HSBC Bank USA, N.A. v. Saris, a case decided on December 24, 2025 by the Appellate Division, Second Department. According to the Court, the “issue on appeal, an issue of first impression for this Court, is whether a party’s attendance at a mandatory settlement conference pursuant to CPLR 3408 constitutes an appearance by a party for the purposes of CPLR 3215(g), which provides, among other things, that a party who has appeared in an action is entitled to at least five days’ notice of an application for leave to enter a default judgment.”
The facts of HSBC Bank are simple. In 2014, the lender commenced a foreclosure action and a mandatory settlement conference attended by the borrower was conducted thereafter. The borrower, however, neither filed a notice of appearance, interposed an answer nor made any motion operating to extend the defendant’s time to answer. The lender’s unopposed motion for a default judgment was granted. A judgment of foreclosure and sale was subsequently entered, and the subject property was sold to the lender at public auction after the borrower’s motion to stay the sale was denied by the motion court. The motion court also denied the borrower’s subsequent motion pursuant to CPLR 5015(a) (1) and (4)[4] to vacate the motion court’s prior orders resulting in the default judgment and the sale of the subject property. The borrower appeals.
The Second Department affirmed. Specifically, as to CPLR 5015(a)(4), the Court noted that any defendant that has appeared in an action is entitled to at least five days’ notice of an application for leave to enter a default judgment pursuant to CPLR 3215(g)(1). The Court further stated that “the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment.” (Citations, internal quotation marks and brackets omitted.) The Court rejected the borrower’s argument under CPLR 5015(a)(4) that the lender’s failure to provide at least five days’ notice of its application for a default judgment because his appearance at the mandatory settlement conference constituted an appearance was a jurisdictional defect.[5] In this regard, the Court stated that “neither the plain language of CPLR 3215(g)(1) nor its legislative history supports the defendants’ contention that attendance at a mandatory settlement conference pursuant to CPLR 3408 constitutes an appearance in an action for the purpose of the notice requirements of CPLR 3215(g)(1).” The Court explained that while the term “appear” or “appearance” is not defined in CPLR 3215, there is also nothing that indicates that those terms should be treated differently than they are elsewhere in the CPLR. The Court also noted that there “appears to be no prior case law from this Court, our sister courts, or the Court of Appeals defining what constitutes an appearance for the purpose of triggering the five-day notice requirement of CPLR 3215.” The Court did note that it has routinely held that attendance at a mandatory settlement conference “does not constitute active litigation of the action or participation in the action on the merits.” (Citation and internal quotation marks omitted.) Thus, the Court stated:
Accordingly, this Court’s own case law interpreting the meaning and scope of the word appear under subdivision (c) of CPLR 3215, together with similar determinations by our sister courts, informs our view that the word appear for the purpose of triggering the notice requirement under subdivision (g) of CPLR 3215 should be defined by the scope of the word as determined by decisional law relating to subdivision (c) of CPLR 3215.
Concomitantly, our determination that attendance at a mandatory settlement conference pursuant to CPLR 3408, alone does not constitute an appearance in the action is wholly consistent with this Court’s case law on the related issue of personal jurisdiction. A defendant does not waive the defense of lack of personal jurisdiction merely by attending a mandatory settlement conference. [Citation omitted.]
Thus, the Court held that the borrower’s attendance at the mandatory settlement conference did not constitute an appearance that triggered the five days’ notice provision of CPLR 3215()(1) and, therefore, the motion court’s rejection of the borrower’s arguments was proper.
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 numerous of articles addressing CPLR 3215(c). To find such articles, please see the BLOG tile on our website and type “CPLR 3215(c)” into the “search” box.
[2] This BLOG has written numerous of articles addressing formal and informal appearances. To find such articles, please see the BLOG tile on our website and type “informal appearance” or “CPLR 320(a)” into the “search” box.
[3] 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, topics that may be of interest you.
[4] CPLR 5015(a)(1) and (a)(4) permit a court to vacate a judgment based on excusable default and lack of jurisdiction, respectively.
[5] The Court also rejected the borrower’s excusable default argument under CPLR 5015(a)(1), because the borrower’s claim of incapacitation was unsupported by medical or other evidence.
Tagged with: Appearance, Commercial Litigation, Mandatory Settlement Conference, Mortgage Foreclosure Litigation
