If you get sued and you don’t respond to the lawsuit’s complaint and summons, the court can enter a default judgment. But you can have this judgment vacated or removed. To do so, you need to have a reasonable excuse for not appearing in court and a defense to the allegations against you. You also have grounds to vacate if the person suing you didn’t properly serve the required documents. You can speed up the process by using an Order to Show Cause form.
Written by Curtis Lee, JD.
Updated August 23, 2023
A central theme of our justice system is due process. This means that courts can’t order defendants to pay money or go to jail unless all parties have followed certain legal requirements. One of the most universal requirements is that the defendant has the right to be notified of and respond to the case against them.
But what happens if the defendant in a civil case ignores the notice or refuses to respond? The judge may enter a default judgment, which essentially means the plaintiff automatically wins the case. But sometimes, default judgments are improperly granted and can be removed. This article focuses on what a defendant can do if a plaintiff enters a default judgment against them in the state of New York.
What Is a Default Judgment?
A default judgment can be thought of as the legal version of a forfeit in sports. If the defendant doesn’t show up in civil court, the judge can issue a default judgment, which is an automatic win for the plaintiff. The plaintiff is the person or company who filed the lawsuit. The defendant is the person who is being sued.
If the defendant doesn’t respond to the lawsuit or show up in court, the plaintiff can’t present their case. But as long as the plaintiff follows certain procedural requirements, they can win anyway and ask the court to enter a default judgment against the defendant.
A judgment is a court order to pay. The amount of a default judgment is usually whatever amount the plaintiff asked for in their complaint, plus interest, court costs, collection costs, and sometimes attorney fees.
Can a Default Judgment Be Vacated in New York?
Yes. A default judgment is a harsh legal remedy, but it’s acceptable when the defendant has a chance to defend themselves and chooses not to. But sometimes, circumstances prevent a defendant from appearing in court or otherwise responding to the plaintiff’s lawsuit. If this happens, the defendant can ask the court to vacate (or set aside) the judgment.
New York courts usually only vacate default judgments in two situations:
Excusable default: The defendant has a good excuse for not appearing and has a valid defense to the lawsuit
Lack of personal jurisdiction (bad service): The defendant wasn’t properly served with the required notice of the lawsuit.
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How To Vacate a Judgment for Excusable Default
Under New York law, an excusable default exists when the defendant had a good reason for not showing up in court and has at least one good defense to the case against them.
Defendants in New York have one year from the date they were served with a copy of the judgment to present an excusable default argument to the court. Keep in mind that this time limit isn’t the same as a statute of limitations.
What Counts as a Reasonable Excuse?
Some examples of reasonable excuses for why a defendant might miss their court date include:
They were seriously ill on the day they had to come to court
They were away (out of town, out of state, or abroad) when they learned of the lawsuit and summons
They were in jail or prison on their court date
They couldn’t take time away from work to appear in court
They contacted the plaintiff’s lawyer who said they didn’t need to appear in court
If a defendant doesn’t respond to the summons because they didn’t understand it, this can sometimes be used as a reasonable excuse. It depends on the judge.
Probably the most common reason a defendant doesn’t appear in court is that they didn’t know about the court date because they never received a summons (or a complaint). A summons is an official legal document that notifies the defendant that a lawsuit has been filed against them.
This qualifies as a reasonable excuse, but in this situation, the defendant can request that the court vacate the judgment for lack of personal jurisdiction (discussed more fully below). A defendant who was never properly notified of the lawsuit doesn’t need a good defense to vacate the judgment.
What Is Considered a Good Defense?
Even if a defendant has a good reason for not showing up in court, to get a default judgment set aside, they must also have a meritorious defense to the lawsuit.
In other words, if the defendant admits they owe the debt, there’s no reason for the court to vacate the judgment.
To vacate a judgment, a defendant doesn’t necessarily need a defense that would guarantee a win in their case. Instead, the defendant just needs to have a good faith belief that they don’t owe the debt as claimed by the creditor (in a debt collection case). This could mean that the defendant knows they owe the plaintiff money, but they dispute the amount owed.
Other possible meritorious defenses include:
The defendant was a victim of identity theft.
The statute of limitations for suing to collect the debt has expired.
The consumer debt the plaintiff is trying to collect has already been paid.
How To Vacate a Judgment for Improper Service
Receiving proper notice about a lawsuit is a critical part of a defendant’s due process rights. If a defendant isn’t properly served with a copy of the complaint and summons, they haven’t been properly informed about the lawsuit. As a result, the defendant can’t mount an effective defense to the plaintiff’s claim. You can use improper service to ask the court to vacate a judgment that’s been entered by default.
What’s Considered Proper Service?
The exact procedure for properly serving an individual defendant to start a civil suit is outlined in the New York Civil Practice Law and Rules (CPLR). Plaintiffs can serve defendants by:
Personal delivery of the summons and complaint.
Handing a copy of the summons and complaint to a person of suitable age and discretion who lives at the defendant’s home or place of business. Then the plaintiff must send a copy of the documents to the defendant via first-class mail.
Serving an agent of the defendant, such as their lawyer.
If a plaintiff’s reasonable attempts at other methods of service haven’t been successful they can “nail and mail.” This means they post a copy of the documents on the door of the defendant’s place of business or home. Then, they also mail the court papers to the defendant’s last known residence or place of business.
What’s Considered Improper Service?
If a plaintiff fails to comply with any of these service requirements, the defendant may have grounds to vacate a default judgment entered against them.
Common examples of insufficient or improper service include:
The defendant didn’t receive a copy of the summons and/or complaint.
The plaintiff served the wrong person, such as a neighbor.
The plaintiff mailed the documents to the wrong address.
The plaintiff left a copy of the documents at the correct address, but the wrong location. For example, they left the documents in the right apartment building, but they left them in the lobby instead of at the defendant’s apartment.
The plaintiff only mailed the documents to the defendant.
One benefit of using this argument is that the defendant doesn’t need a defense (meritorious or not) to go along with the improper service reason for vacating a default judgment. Another advantage is that there’s no time limit.
Because proper service is critical to the court’s jurisdiction over the defendant, a judgment that resulted from bad service can be vacated at any time. But there’s one potential disadvantage that comes with an improper service defense.
The drawback is that the burden is on the defendant to prove bad service, which can be difficult. To do this, the defendant must appear at a special court hearing called a traverse hearing and explain why the plaintiff’s service of process was faulty.
You Can Expedite the Process To Vacate a Judgment By Using an Order To Show Cause Form
The CPLR outlines the exact process for vacating a default judgment. You can get a judgment vacated more quickly by submitting an Order to Show Cause and a supporting affidavit. An Order to Show Cause is a formal request to the court. The affidavit is a sworn statement that explains why the court should grant the order.
Here are the steps to this process:
Fill out the Order to Show Cause form and set out your reasons for requesting the default judgment be vacated.
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 and affidavit, you must state the reason(s) you want to vacate the default judgment. These could include any of the reasons laid out above.
It doesn’t include not having any money for the plaintiff to collect, which is also called being judgment proof. If the judgment must be vacated as soon as possible, you should say so and explain why.
Step 2: Give the Order to the Court Clerk for a Judge’s Signature
After completing the Order to Show Cause and affidavit, you must give it to the clerk of the court who then submits it to the judge. Even if the judge signs the form, though, the judgment isn’t automatically vacated. Instead, the court schedules a court date for both parties to appear and discuss whether the judgment should be vacated.
If the judge signs the order form, the defendant must make sure the plaintiff or plaintiff’s attorney gets a copy. If the judge doesn’t sign the order form, the default judgment stays in place.
Step 3: Be Prepared To Defend Yourself in the Lawsuit if the Judgment Is Vacated
A court order vacating a default judgment may also include additional relief relating to the judgment. For instance, if there’s a levy on the defendant’s bank account or wage garnishment, the plaintiff must immediately stop doing either after the judgment is vacated.
If you’re a defendant trying to use an Order to Show Cause to vacate a judgment, your attorney can complete the necessary paperwork. If you don’t have a lawyer, you can get a blank Order to Show Cause form from the court or you can download one from the court website. The clerk’s office can give you general information about how the process works, but they can’t give any legal advice.
Remember: Even if the judge vacates the default judgment, this doesn’t mean the lawsuit goes away. You will still likely need to defend yourself against the plaintiff’s lawsuit.
If a defendant doesn’t respond to a plaintiff’s lawsuit, the court may enter a default judgment. But a default judgment can be vacated if the defendant had a reasonable excuse for not appearing in court and a meritorious defense to the plaintiff’s allegations. A default judgment can also be vacated if the defendant wasn’t properly served notice of the lawsuit. To get a judgment vacated as quickly as possible, defendants can use an Order to Show Cause form.