Motion to Vacate Default Judgment in New York

How to Structure the Motion

"A party seeking to vacate an order or judgment on the ground of excusable default must offer a reasonable excuse for its default and a meritorious defense." (Wells Fargo Bank, N.A. v. Dysinger, (2017) 149 A.D.3d 1551, 1552; see also, Calaci v. Allied Interstate,Inc. (2013) 108 A.D.3d 1127,1128.)

“The determination on whether the moving party's excuse is reasonable lies within the sound discretion of the court.” Vogt v. Eberhardt (2018) 163 A.D.3d 1514, 1515.

The prerequisites to vacate a default judgment, both a valid excuse for the default and a meritorious defense to the underlying action, must be established through facts contained in affidavits submitted in support of the application. (Tandy Computer Leasing v. Video X Home Library (1986) 124 A.D.2d 530.)

An affidavit disclosing a meritorious defense must be presented in seeking vacatur of a default judgment. (Abrams v. Abrams (1977) 56 A.D.2d 775.) Further, it is well established that a party's default, or ... numerous defaults, should not be vacated absent a showing of a justifiable excuse for the default/s and a meritorious defense. (See Uram v. Smith (2016) 138 A.D.3d 553; Dash Rlty. Corp. v. Barbosa (1993) 198 A.D.2d 89; Tandy Computer Leasing. v. Video X Home Library, (1986) 124 A.D.2d 530.)

The Court’s Decision

There is a strong public policy favoring resolution of cases on their merits [and therefore, granting motions vacating default judgments]. (Arrington v. Bronx Jean Co. (2010) 76 A.D.3d 461, 462.

"While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes 'good cause' for the delay (see Spira v New York City Tr. Auth., 49 A.D.3d 478). No prejudice to plaintiff has been shown ( see Cirillo v Macy's, Inc., 61 A.D.3d 538, 540), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129). An affidavit of merit is not required where no default order or judgment has been entered...." (Lamar v. N.Y (2009) 68 A.D.3d 449.)

Denial of Motion to Vacate Default Judgment

In Rodriguez v Dixie N. Y.C., Inc.(2006) 26 A.D.3d 199, the defendants motion to vacate default judgment was denied due to “persistent and willful inaction” where defendants: knew their insurance carrier was in liquidation; failed to respond to a notice of inquest and notice of entry of judgment; and waited fourteen months to vacate default judgment.

Mortgage Elec Registration Sys., Inc. v. Schotter (2008) 50 A.D.3d 983, 857 N.Y.S.2d 592 — Affirming lower court's denial of motion to vacate judgment of foreclosure and sale and finds that “[t]he affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308[4] and the defendant's conclusory allegations were insufficient to rebut the presumption of proper service.”

Pinpoint Tech, LLC v. Egan (2014) 988 N.Y.S.2d 525 — Affirming lower court's denial of motion to vacate default judgment for lack of personal jurisdiction under CPLR 5015(a)(4) and finds that defendant's statement "that the summons and complaint had not been properly served and that he had never received any court papers jurisdiction claim was wholly conclusory"; further, relief under CPLR 5015(a)(1) was not warranted as defendant “also proffered no reasonable excuse for his default.”