Justice Jack Battaglia
Plaintiff sought summary judgment by default in this mortgage foreclosure action against mortgagor Butler. Plaintiff's first two applications for the same relief were denied based on the court's determination that the affidavit of service on Butler did not establish prima facie she was properly served. The action was subsequently referred to the Foreclosure Settlement Conference Part for mandatory settlement conference proceedings under CPLR 3408, and the motion was held in abeyance. The court noted Butler's many appearances in the proceeding, but found plaintiff offered no other factual basis for Butler's "appearance," and did not expressly contend she waived any jurisdictional defense. It also questioned that if Butler appeared in the action, was she "in default" for purposes of entry of judgment by default. The court stated caselaw was clear that where Butler made an "informal appearance" within the time specified by §320(a), she was not in default, and a motion to enter judgment by default should be denied. It stated participation in court conferences could constitute an "informal appearance," finding Butler appeared 25 times in the settlement part and several times before the court, thus was not in default, denying plaintiff's motion.
