How To Vacate a Default Judgment in New York

A central theme of our justice system is due process. Courts can’t order you to pay money unless certain legal requirements are met. One universal requirement: you have the right to notice and response.

But what happens if you ignore the notice or refuse to respond? The judge may enter a default judgment against you. The plaintiff automatically wins. Sometimes these judgments are improperly granted and can be removed. Here’s what you can do if you face a default judgment in New York.

What Is a Default Judgment?

A default judgment is the legal version of a forfeit in sports. If you don’t show up in civil court, the judge issues a default judgment. The plaintiff wins automatically.

The plaintiff is the person or company who filed the lawsuit. You are the defendant being sued.

If you don’t respond or show up, the plaintiff can’t present their case. But if they follow certain procedural requirements, they win anyway. The court enters a default judgment against you.

A judgment is a court order to pay. The amount usually includes whatever the plaintiff requested. Add interest, court costs, collection costs, and sometimes attorney fees.

Can You Vacate a Default Judgment in New York?

Yes. A default judgment is harsh but acceptable when you had a chance to defend yourself. Sometimes circumstances prevent you from appearing in court. If this happens, you can ask the court to vacate the judgment.

New York courts usually only vacate default judgments in two situations:

• Excusable default: You have a good excuse for not appearing and a valid defense
• Lack of personal jurisdiction (bad service): You weren’t properly served with required notice

How To Vacate a Judgment for Excusable Default

Under New York law, excusable default exists when you had a good reason for missing court. You must also have at least one good defense to the case.

You have one year from the date you were served with the judgment. The time limit isn’t the same as a statute of limitations.

What Counts as a Reasonable Excuse?

Examples of reasonable excuses for missing your court date include:

• You were seriously ill on your court date
• You were away when you learned of the lawsuit and summons
• You were in jail or prison on your court date
• You couldn’t take time away from work to appear
• The plaintiff’s lawyer said you didn’t need to appear

Not understanding the summons can sometimes work as a reasonable excuse. It depends on the judge.

The most common reason for missing court: you never received a summons or complaint. A summons is an official document notifying you that a lawsuit was filed.

This qualifies as a reasonable excuse. You can request the court vacate the judgment for lack of personal jurisdiction. You don’t need a good defense when you were never properly notified.

What Is Considered a Good Defense?

Even with a good reason for missing court, you need a meritorious defense. If you admit you owe the debt, there’s no reason to vacate.

You don’t need a defense that guarantees a win. You just need a good faith belief that you don’t owe the debt. You might know you owe money but dispute the amount owed.

Other possible meritorious defenses include:

• You were a victim of identity theft
• The statute of limitations for collecting the debt has expired
• The consumer debt has already been paid

How To Vacate a Judgment for Improper Service

Receiving proper notice about a lawsuit is critical to your due process rights. If you aren’t properly served with the complaint and summons, you can’t mount an effective defense. Our partner Solo can help you respond to improper service and vacate a judgment.

What’s Considered Proper Service?

The exact procedure for properly serving defendants is outlined in New York Civil Practice Law and Rules. Plaintiffs can serve you by:

• Personal delivery of the summons and complaint
• Handing a copy to a person of suitable age at your home or business, then mailing a copy to you via first-class mail
• Serving your agent, such as your lawyer

If reasonable attempts at other methods fail, they can “nail and mail.” They post documents on your door. Then they mail the papers to your last known address.

What’s Considered Improper Service?

If the plaintiff fails to comply with service requirements, you may have grounds to vacate. Common examples of improper service include:

• You didn’t receive a copy of the summons or complaint
• The plaintiff served the wrong person, such as a neighbor
• The plaintiff mailed documents to the wrong address
• The plaintiff left documents at the wrong location in your building
• The plaintiff only mailed the documents to you

One benefit: you don’t need a defense to vacate for improper service. Another advantage: there’s no time limit.

A judgment from bad service can be vacated anytime. But there’s one potential disadvantage with this defense.

The burden is on you to prove bad service. You must appear at a traverse hearing and explain why the service was faulty.

Expedite the Process With an Order To Show Cause Form

You can get a judgment vacated more quickly by submitting an Order to Show Cause. Include a supporting affidavit. An Order to Show Cause is a formal request to the court. The affidavit is a sworn statement explaining why the court should grant your order.

Here are the steps to this process:

• Fill out the Order to Show Cause form with your reasons
• Submit the order and affidavit to the clerk of court
• Be prepared to show up for a hearing

Step 1: Set Out Your Reasons

When filling out an Order to Show Cause form, you must state your reasons. These could include any of the reasons laid out above.

Being judgment proof isn’t a valid reason for vacating a judgment. If the judgment must be vacated immediately, say so and explain why.

Step 2: Give the Order to the Court Clerk

After completing the Order to Show Cause and affidavit, give it to the court clerk. They submit it to the judge. Even if the judge signs the form, the judgment isn’t automatically vacated.

The court schedules a court date for both parties to appear. You’ll discuss whether the judgment should be vacated.

If the judge signs the order form, make sure the plaintiff or their attorney gets a copy. If the judge doesn’t sign the order, the default judgment stays in place.

Step 3: Be Prepared To Defend Yourself

A court order vacating a default judgment may include additional relief. For instance, if there’s a levy on your bank account or wage garnishment, the plaintiff must immediately stop.

Your attorney can complete the necessary paperwork. If you don’t have a lawyer, get a blank form from the court. The clerk’s office can give you general information. They can’t give legal advice.

Remember: Even if the judge vacates the default judgment, the lawsuit doesn’t go away. You will still need to defend yourself against the plaintiff’s claims. Our partner Solo helps you respond to debt lawsuits and negotiate settlements.