How To Vacate a Default Judgment in New York: An Overview

What Is a Default Judgment?

A default judgment is kind of like losing by forfeit in a sports game. If the person being sued—the defendant—doesn’t respond to the lawsuit or show up in court, the judge can issue a default judgment. This gives the person or company suing them—the plaintiff—an automatic win.

💡 The plaintiff is the person or company who files the lawsuit. The defendant is the person being sued.

Even if the plaintiff doesn’t get to present their full case in court, they can still win by default as long as they’ve followed the proper legal steps.

A judgment legal order that says the defendant has to pay money. The amount usually includes what the plaintiff asked for in the lawsuit, plus any added interest, court fees, collection costs, and sometimes attorney fees.

Sometimes, default judgments are granted by mistake or without following the proper steps. If this happens, they can be canceled. In legal terms this is often called vacating or setting aside the judgement.

Can a Default Judgment Be Vacated in New York?

A default judgment can feel harsh, but it’s allowed when someone has the chance to respond to a lawsuit and simply doesn’t. Still, life happens—sometimes people miss court or don’t respond for a good reason. If that’s the case, it may be possible to ask the court to cancel, or “vacate,” the judgment and get another chance to respond.

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.

💡 Service means officially delivering the legal papers to let someone know they’re being sued.

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

Getting proper notice about a lawsuit is a key part of your rights. If you weren’t correctly served with the summons and complaint, you might not have even known you were being sued. That means you didn’t have a fair chance to respond or defend yourself.

🏛️ If this happens, you may be able to ask the court to cancel the default judgment based on improper service.

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 the plaintiff doesn’t follow the proper steps for serving the legal papers, you may have a valid reason to ask the court to cancel the default judgment.

Some common examples of improper or incomplete 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 big benefit of using improper service as a reason to vacate a default judgment is that you don’t need to have a separate defense to the lawsuit itself.

🗓️ Also, there’s no deadline. Because proper service is so important to a fair legal process, a default judgment based on bad service can be challenged at any time.

But there’s one downside. If you claim the service was improper, it’s up to you to prove it. That can be tricky. You’ll need to go to a special court hearing, called a traverse hearing, where you explain why the way you were served wasn’t correct.

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

When a court vacates a default judgment, there may also be other upsides. For instance, if can stop a bank levy or wage garnishment order associated with the judgment.

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. 

Let's Summarize... 

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.