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 Attorney Curtis Lee.
Updated March 10, 2022
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 their 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 who brought the lawsuit. Default judgments often result from a plaintiff filing a lawsuit and serving a copy of the complaint and summons on the defendant, and the defendant failing to answer or appear in court.
If the defendant doesn’t show up, 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 judgment in their favor. This often results in money or other legal relief the plaintiff asked for in their complaint, plus interest, and court costs.
Upsolve User Experiences2,291+ Members Online
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 will usually vacate a default judgment in two situations:
The defendant had a good excuse for not responding to the lawsuit, or
There’s a lack of jurisdiction over the defendant. This usually means that the defendant wasn’t properly served required notices.
Vacating a Judgment for Excusable Default
An excusable default is a fancy way of saying the default judgment should be vacated because the defendant had a good reason for not showing up in court, and they have at least one good defense that could’ve allowed them to win the case.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.
Common Examples of a Reasonable Excuse
Probably the most frequently accepted reasonable excuse is that the defendant had no idea they were being sued because they never received a summons (or a complaint). This tells them that a lawsuit is being filed against them. Another potential reasonable excuse is that the defendant contacted the plaintiff’s lawyer who said they didn’t need to appear in court.
Defendants may have also a reasonable excuse if they:
Were seriously ill on the day they had to come to court.
Were away (out of town, out of state, or abroad) when they learned of the lawsuit and summons.
Were in jail or prison when served with the summons.
Couldn’t take time away from work 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.
Common Examples of a Meritorious Defense
Assuming the defendant had a good reason for not showing up in court, they still need a meritorious defense. This isn’t as high of a standard to meet as it seems. It doesn’t mean the defendant needs a defense that would result in them winning their case. Instead, the defendant only 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 possibly 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.
Vacating 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.
Methods of 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:
Personally delivering the summons and complaintt.
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 know residence or place of business.
If a plaintiff fails to comply with any of these service of process requirements, the defendant may have grounds to vacate a default judgment entered against them. Common examples of insufficient 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 of the benefits of using this argument is that there’s no time frame to make it. Because it relates to a court’s lack of jurisdiction over the defendant, the defendant can present this argument at any time before the lawsuit starts. Another advantage 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. 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.
To Expedite the Process, Use the 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.
Set Out Your Reasons
When filling out an Order to Show Cause form and affidavit, you must set out the reasons for vacating 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, the defendant should explain that in the order.
Give the Order to the Court Clerk for a Judge’s Signature
After completing the Order to Show Cause and affidavit, the defendant must give it to the clerk of the court who then submits it to the judge. If the judge signs the form, the defendant doesn’t automatically get the default judgment vacated. Instead, the court schedules a court date for the defendant and plaintiff 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 their attorney gets a copy. If the judge doesn’t sign the order form, the judgment stays in place.
Be Prepared To Defend Yourself in the Lawsuit if the Judgment Is Vacated
If the judge vacates the judgment at the Order to Show Cause hearing, the defendant will still likely have to defend themselves against the plaintiff’s lawsuit. 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 gets 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. The court clerk can give you general information about how the process works, but they can’t give any legal advice.
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.