Waiver by Motion Practice: Personal Jurisdiction and CPLR 3215(c) Abandonment Defenses Forfeited; 22 NYCRR 202.48 Inapplicable Absent “On Notice” Directive

Introduction

In Bank of New York Mellon v. Gaston, 2025 NY Slip Op 04864 (Appellate Division, Second Department, Sept. 10, 2025), the court affirmed a series of Supreme Court (Queens County) orders in a mortgage foreclosure action. The appeal presented recurring procedural battlegrounds in New York foreclosure practice: waiver of personal jurisdiction, the one-year abandonment rule under CPLR 3215(c), the 60-day rule for settling orders under 22 NYCRR 202.48, standards for vacating a default under CPLR 5015(a), and the limits of renewal and reargument under CPLR 2221.

The dispute stems from a 2013 foreclosure filing against defendants Valerie Gaston and James S. Hawkins-El III. After their pre-answer motion to dismiss for lack of standing was denied, the defendants never answered. Years later, the plaintiff moved for a default judgment and an order of reference, which the Supreme Court granted. The defendants responded with motions to vacate the default (claiming improper service), to dismiss for abandonment under CPLR 3215(c), to vacate the order under 22 NYCRR 202.48, and later, motions to renew and reargue. The Appellate Division largely rejected these efforts, clarifying multiple waiver doctrines and procedural guardrails.

Summary of the Opinion

The Appellate Division dismissed the appeals from the portions of the October 31, 2022 and December 15, 2022 orders that denied reargument, because no appeal lies from an order denying reargument.
It affirmed:
- the May 12, 2022 order granting plaintiff leave to enter a default judgment and an order of reference;
- the August 25, 2022 order denying defendants’ motion to vacate their default and for leave to answer, and denying their separate motion to vacate the January 22, 2020 order and to dismiss under CPLR 3215(c);
- the October 31, 2022 order denying renewal (insofar as reviewed); and
- the December 15, 2022 order denying renewal (insofar as reviewed).
The court awarded one bill of costs to the plaintiff.

Key Holdings at a Glance

Opposing a default motion and moving to vacate without raising lack of personal jurisdiction waives the jurisdictional defense (CPLR 320; Skyline Agency v. Coppotelli; NYCTL 1996-1 Trust v. 5200 Enters.).
Attorney assumptions about a client proceeding pro se are not a reasonable excuse to vacate a default under CPLR 5015(a)(1) (Cusumano v. Riley Land Surveyors; HSBC v. Scivoletti).
CPLR 3215(c)’s abandonment defense can be waived by “steps” amounting to a formal or informal appearance, including opposing a default motion or moving to vacate (Myers v. Slutsky; HSBC v. Ranasinghe).
22 NYCRR 202.48’s 60-day rule applies only when an order is directed to be “settled or submitted on notice”; absent that directive, the rule does not trigger abandonment (Deutsche Bank v. Musheyev; U.S. Bank Trust v. Rahman).
Nonjurisdictional defenses—such as RPAPL 1304 compliance, standing, or loan modification—are precluded if the default is not vacated (Ditech Financial v. Howell).
Renewal requires new facts not available earlier or a change in the law that would change the result; neither was shown (CPLR 2221[e]).

Case Background and Timeline

March 2013: Plaintiff commences foreclosure against Gaston and Hawkins-El on Queens property.
April 26, 2013: Affidavits of service filed reflecting substituted service under CPLR 308(2).
December 10, 2013: Supreme Court denies defendants’ pre-answer CPLR 3211(a) motion to dismiss for lack of standing.
Defendants do not answer.
November 2018: Plaintiff moves for default judgment and order of reference.
January 22, 2020: Supreme Court grants default judgment and order of reference.
Defendants move to vacate default (CPLR 5015[a]) and separately to vacate under 22 NYCRR 202.48 and to dismiss under CPLR 3215(c).
May 12, 2022: Supreme Court grants plaintiff’s motion for default and appoints a referee.
August 25, 2022: Supreme Court denies defendants’ 5015(a) motion and their 202.48/3215(c) motion.
October 31, 2022 and December 15, 2022: Supreme Court denies defendants’ motions to renew and reargue.
Appeal: Second Department affirms (and dismisses reargument appeals), Sept. 10, 2025.

Analysis

Precedents Cited and How They Shaped the Decision

Pemberton v. Montoya, 216 AD3d 988, 989: Restates what a plaintiff must show to obtain a default judgment under CPLR 3215(f): proof of service, facts constituting the claim, and the defendant’s default. The court relied on this to uphold the default judgment and order of reference.
Skyline Agency, Inc. v. Coppotelli, 117 AD2d 135, 140, and CPLR 320: Establish that an appearance—without an objection to jurisdiction—functions as personal service and waives a personal jurisdiction defense. Defendants’ pre-answer motion (omitting a jurisdictional objection) and later opposition to default triggered this waiver.
NYCTL 1996-1 Trust v. 5200 Enters. Ltd., 219 AD3d 617, 618–619: Confirms that engaging in motion practice without raising jurisdiction waives the defense; the Second Department applied that principle here.
Deutsche Bank Natl. Trust Co. v. Hossain, 187 AD3d 986, 987: Sets the dual requirement for vacating a default under CPLR 5015(a)(1): a reasonable excuse and a potentially meritorious defense. The court found no reasonable excuse and therefore did not reach the merits.
Cusumano v. Riley Land Surveyors, LLP, 179 AD3d 593, 594: Rejects an attorney’s assumption-based excuse. The same rationale disposed of defendants’ claimed excuse that counsel thought clients were proceeding pro se.
HSBC Bank USA, N.A. v. Scivoletti, 212 AD3d 600, 602: If a reasonable excuse is lacking, courts need not reach whether a defense is meritorious.
Deutsche Bank Natl. Trust Co. v. Musheyev, 203 AD3d 1027, 1029, and U.S. Bank Trust, N.A. v. Rahman, 218 AD3d 626, 627: 22 NYCRR 202.48 applies only where the order is directed to be “settled or submitted on notice.” Because the January 2020 order lacked that directive, the 60‑day abandonment rule did not apply.
Myers v. Slutsky, 139 AD2d 709, 711: A defendant may waive the CPLR 3215(c) abandonment defense by serving an answer or taking any steps amounting to a formal or informal appearance.
HSBC Bank USA, N.A. v. Ranasinghe, 199 AD3d 993: Applying Myers in the foreclosure context—opposing a default motion and moving to vacate constitute waiver of 3215(c) abandonment.
Ditech Financial, LLC v. Howell, 201 AD3d 786, 788: Nonjurisdictional defenses such as RPAPL 1304 compliance, standing, and loan modification are precluded if a default remains in place.
CPLR 2221(e): Renewal requires new facts not previously known or a change in the law that would alter the result. The defendants’ motions did not satisfy this standard.

Legal Reasoning

Default Judgment and Order of Reference (CPLR 3215[f])
The plaintiff made the required showing: affidavits of service (CPLR 308[2]), proof of the facts constituting the claim, and the defendants’ failure to answer. The court held this sufficed to enter default and appoint a referee to compute amounts due on the note, consistent with standard foreclosure practice.
Jurisdictional Vacatur Denied (CPLR 5015[a][4])—Waiver Through Appearance
Although defendants argued improper service belatedly, they had already made a pre-answer motion to dismiss (on standing) and later opposed a default motion—without asserting lack of personal jurisdiction. Under CPLR 320 and Skyline, that conduct is an appearance that waives jurisdictional objections. The court therefore rejected vacatur under CPLR 5015(a)(4).
Excusable Default Vacatur Denied (CPLR 5015[a][1])—No Reasonable Excuse
Defendants’ attorney claimed he assumed the clients chose to proceed pro se. The Second Department deemed this unreasonable, echoing Cusumano. Without a reasonable excuse, the court did not reach whether defendants had a meritorious defense (HSBC v. Scivoletti).
202.48 Abandonment Inapplicable—No “On Notice” Directive
The January 2020 order did not instruct that it be settled or submitted on notice. Consequently, 22 NYCRR 202.48’s 60-day submission requirement—and its abandonment penalty—did not apply (Musheyev; Rahman). Defendants’ attempt to vacate on that ground failed.
3215(c) Abandonment Waived by Informal Appearance
Defendants opposed the default motion and moved to vacate their default without, at that time, invoking CPLR 3215(c). Under Myers and Ranasinghe, such steps qualify as a formal or informal appearance and waive the right to later seek dismissal for abandonment. The court affirmed denial of the 3215(c) motion.
Nonjurisdictional Defenses Precluded by Default
The court labeled RPAPL 1304 compliance, standing, and any alleged loan modification as nonjurisdictional. Because the default stood, these defenses could not be entertained (Ditech v. Howell).
Renewal Motions Properly Denied (CPLR 2221[e])
Defendants presented neither new facts that would change the result nor a change in the law. Renewal is not a vehicle to relitigate issues with previously available material; denial was affirmed.

Impact and Practice Implications

The decision consolidates several practical warnings for foreclosure and broader civil practice:

Jurisdictional defenses must be raised at the first opportunity. New York’s “no special appearance” regime means any appearance—such as a pre-answer motion on other grounds or opposition to a default motion—will waive personal jurisdiction unless the objection is included then and there. Even claims of defective service cannot be revived after a general appearance.
3215(c) abandonment can be lost through participation. Defendants who engage with the case (e.g., opposing a default motion, moving to vacate) without simultaneously asserting CPLR 3215(c) risk waiving that defense. Counsel should assert 3215(c) at the earliest engagement after the one-year period has passed.
22 NYCRR 202.48 is narrower than often assumed. The 60-day submission rule only applies when the court directs that an order be “settled or submitted on notice.” Practitioners should read orders carefully; absent that language, 202.48 cannot be used to claim abandonment.
Excusable default requires diligence, not assumptions. Attorneys must formalize withdrawals (CPLR 321[b]) or confirm responsibilities; assumptions about clients proceeding pro se will not excuse a default.
Foreclosure-specific defenses are forfeited if the default stands. Even hotly litigated issues like RPAPL 1304 compliance and standing are nonjurisdictional and cannot be reached without first vacating the default.
Renewal is not a do-over. Without genuinely new evidence or a change in law likely to alter the outcome, renewal will be denied.

Complex Concepts Simplified

Default judgment (CPLR 3215): If a defendant fails to answer or appear, the plaintiff can obtain judgment by showing proper service, a viable claim, and the default.
Order of reference: In foreclosure, the court appoints a referee to calculate the amount due (often a step before a judgment of foreclosure and sale).
Personal jurisdiction vs. subject matter jurisdiction: Personal jurisdiction concerns the court’s power over the parties and can be waived by appearance. Subject matter jurisdiction concerns the court’s authority over the type of case and cannot be waived. This case involves personal jurisdiction.
CPLR 308(2) substituted service: Service by delivering papers to a person of suitable age at the defendant’s home or business and mailing a copy; service is complete 10 days after proof is filed.
Appearance (CPLR 320): Participating in the case (e.g., filing motions) constitutes an appearance. If you appear without objecting to personal jurisdiction at that time, you waive that defense.
CPLR 5015(a)(1) vacatur: Requires both a reasonable excuse for default and a potentially meritorious defense. Failure on either prong defeats the motion.
CPLR 5015(a)(4) vacatur: Permits vacatur for lack of jurisdiction—but the defense must not have been waived by a prior appearance.
CPLR 3215(c) abandonment: If a plaintiff does not take steps for entry of default within one year after the default, the case can be dismissed unless sufficient cause is shown. The defense can be waived by the defendant’s subsequent participation.
22 NYCRR 202.48: Requires submission of orders or judgments within 60 days only if the court directs they be “settled or submitted on notice.” Without that directive, there is no 60-day clock or abandonment penalty.
RPAPL 1304: Requires 90-day pre-foreclosure notice to borrowers; it is a condition precedent but not jurisdictional—meaning it cannot be raised after a default unless the default is first vacated.
Renewal vs. reargument (CPLR 2221): Renewal is based on new facts or a change in law; reargument asserts the court misapprehended prior facts or law. Orders denying reargument are not appealable.

Practical Checklists

For Defendants

At first appearance, raise lack of personal jurisdiction if applicable (CPLR 3211[e], 320) or it will be waived.
If the plaintiff delays more than a year after default, assert CPLR 3215(c) at your first responsive move or risk waiving it.
To vacate a default (CPLR 5015[a][1]), gather admissible proof of a reasonable excuse and a meritorious defense.
Do not rely on RPAPL 1304, standing, or loan modification unless and until the default is vacated; they are nonjurisdictional.
For renewal (CPLR 2221[e]), present genuinely new evidence or a change in the law that would alter the outcome.

For Plaintiffs

Maintain complete service records; affidavits of service and filing dates (CPLR 308[2]) will support default.
Even after long delays, monitor whether defendants’ participation has waived 3215(c) and jurisdictional defenses.
When submitting proposed orders, note that 22 NYCRR 202.48 applies only if the court directs settlement or submission “on notice.”
Oppose 5015(a)(1) vacatur by challenging the “reasonable excuse” and reserving the right to challenge the merits only if needed.

Conclusion

Bank of N.Y. Mellon v. Gaston reinforces core procedural principles in New York foreclosure practice. Defendants who participate in litigation without timely raising lack of personal jurisdiction or CPLR 3215(c) abandonment forfeit those defenses. Excuses grounded in attorney assumptions do not satisfy CPLR 5015(a)(1), and nonjurisdictional foreclosure defenses remain off-limits unless the default is vacated. The decision also narrows the reach of 22 NYCRR 202.48 to orders explicitly directed to be settled or submitted on notice, reducing its utility as a post hoc abandonment tool.

The case is a clear reminder: procedural precision at the earliest stages is decisive. For defendants, objections must be raised at once; for plaintiffs, careful documentation of service and awareness of waiver-inducing conduct can sustain default relief years after commencement. The Second Department’s affirmance will likely continue to guide foreclosure litigation strategy on defaults, waiver, and post-judgment motion practice across the state.

Citation

Bank of N.Y. Mellon v. Gaston, 2025 NY Slip Op 04864 (App Div 2d Dept, Sept. 10, 2025).