FAQ’s: Vacating a Default Judgment

Many of my clients come to me after they have failed to answer the Summons and Complaint in time. They’re trying to vacate (undo) the default judgment and they’re often frantic about the consequences should they fail. I’d like to tell you that it’s a no-brainer process. It isn’t. It is usually extremely facts and circumstances sensitive. The following provides some guidance for anyone trying to vacate a default judgment. I would never recommend anyone attempt to vacate a default judgment without the assistance of an attorney. There’s usually just too much at stake to play lawyer for the first time.

CPLR 5015 provides for the basis for vacating a default judgment. It states in part as follows:

(a) On motion.  The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry;  or

2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404 ;  or

3. fraud, misrepresentation, or other misconduct of an adverse party;  or

4. lack of jurisdiction to render the judgment or order;  or

5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

Focusing on CPLR 5015(a)(1) for the purposes of this article (as it is the most common basis for vacating a default judgment), you need to show two things: (1) that you have a reasonable and real excuse for trying to vacate a default judgment, and (2) you need to show you have meritorious and real defenses to the claims in the summons and complaint. If you don’t meet the first step, you don’t get to the second step.

That being said case law also helps you out a bit. Courts have held that: (1) public policy strongly favors giving parties the opportunity to be heard and adjudicating disputes on the merits; (2) Courts don’t like granting default judgments especially where the defendant’s conduct was not willful or intentional or not because of bad faith; and (3) Court’s will consider what is fair and what furthers substantial justice.

If you have a judgment against you or if you failed to answer a Complaint in time, contact an attorney, get a free consultation, and figure out makes the most sense in terms of both time and money.

[vacate a default judgment]


Posted in Blog, Litigation FAQ'S.

Leave a Reply

Your email address will not be published. Required fields are marked *