Dean Pillarella Pens Article for New York Law Journal on Informal Appearances

New York, N.Y. (February 9, 2022) - New York Appellate Associate Dean Pillarella recently authored an article for the New York Law Journal (NYLJ) titled "The Informal Appearance, Its Origins, Instances, and Impact." The article discusses the history of the "informal appearance" under New York law, describes examples of its occurrence, and highlights its impact in the personal jurisdiction and default-judgment contexts.

Mr. Pillarella opens the article by explaining, "In addition to making a 'formal' appearance pursuant to CPLR 320(a), a defendant may also make an 'informal' appearance, which 'comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits' or otherwise 'substantially participat[es] in the litigation.'"

Next, the author describes the origin of the informal appearance, describing that before the CPLR's enactment in 1963, courts distinguished between "general" and "specific" appearance. Specifically, a "voluntary and general" appearance by the defendant constituted a waiver of objections to any defects in the summons. Conversely, a "specific" or "special" appearance applied in situations where a defendant appeared specifically for the purpose of contesting personal jurisdiction. On this point, Mr. Pillarella observes that "the informal appearance traces its origin directly to the general appearance and may rightly be called its modern-day equivalent."

Mr. Pillarella continues by reviewing case law regarding what type of action constitutes making an informal appearance (e.g., motion practice, participation in discovery, sending a letter to the court) and what does not (e.g., engaging in settlement negotiations, filing a motion for leave to serve an untimely answer, making informal requests for information). Following his description of these matters, Mr. Pillarella notes, "In sum, where the defendant participates on the merits or otherwise evinces an intent to substantially participate in the action, his/her conduct may constitute an informal appearance." He further observes that an informal appearance may prevent a default judgment or waive jurisdictional objections depending upon whether the appearance occurs before or after CPLR's 320(a) time to appear. He explains, "an appearance within the statutory time to appear renders CPLR 3215(c) inapplicable in preventing a default altogether, while a belated appearance results in a waiver of both the right to a CPLR 3215(c) dismissal and any jurisdictional objections."

Mr. Pillarella closes the article with a message to defense attorneys. He states, "Though an informal appearance can spare the defendant from a default without a waiver of jurisdictional objections in some instances, its occurrence otherwise is fraught with danger. If the defendant is yet to formally appear, counsel must tread carefully to avoid an inadvertent waiver of the defendant's rights by informal appearance."

Mr. Pillarella is a member of Lewis Brisbois' Appellate Practice. He focuses his practice on drafting and arguing substantive motions and appeals in the New York trial and appellate courts.

You may access the full NYLJ article here (subscription may be required).