Can you undo a default judgment in New York?

This page explains New York law. A default judgment can come to light in several ways: a copy of the judgment in the mail, a demand for payment, an entry on a credit report, a garnished paycheck, a frozen bank account or a lien on property. The court system's CourtHelp guide lists each of these, and the last three are enforcement tools described in what happens after a money judgment is entered against you in New York. KOR Law LLP's post-judgment defense practice handles motions to vacate alongside the enforcement fight that usually comes with them.

On what grounds can a default judgment be vacated?

The one-year clock in CPLR 5015(a)(1) does not start until the judgment and notice of entry are served on you, and CourtHelp confirms that if you were never served with a copy of the judgment, that limit does not apply. A single request can rely on both excusable default and bad service, as long as it includes what each ground requires (CourtHelp).

What counts as a reasonable excuse and a real defense?

For excusable default, CourtHelp says you must show two things: a good reason why you missed the court date or did not answer, and a good reason why the plaintiff should not win. Its examples of reasonable excuses include never receiving the summons, being out of town, ill or incarcerated, being unable to get off work, being told by someone at the courthouse or by the other side's lawyer that you did not need to come, and a debt that arose out of an abusive situation that left you afraid to go to court. Its examples of defenses in a consumer debt case include the statute of limitations, identity theft, mistaken identity, full or partial payment, a dispute over the amount, being only an authorized user, bankruptcy and having no relationship with the plaintiff.

A defense explains why you do not owe the money, not why you cannot pay it now. If you owe the debt but cannot afford it, the more useful question is which of your money and property the law protects, covered in property a judgment creditor cannot take in New York.

What if you were never properly served?

If the summons and complaint were not served the right way, the court never had jurisdiction over you, and the judgment can be vacated on that ground alone, without an excuse or a defense on the merits (CPLR 5015(a)(4); CourtHelp). CourtHelp explains that bad service has to be proved at a traverse hearing, using the affidavit of service, the process server's sworn account, which you can get from the clerk.

Read the affidavit against the statute. When papers are left with a person of suitable age and discretion, the proof of service must identify that person and state the date, time and place, and the delivery and the mailing must happen within 20 days of each other (CPLR 308(2)). Fixing the papers to the door is allowed only when delivery to you, or to such a person, cannot be made with due diligence (CPLR 308(4)). CourtHelp's list of common examples of bad service includes papers handed over by the person suing you, papers left with a doorman or a child, papers that arrived only by mail, and papers left on the door with no copy mailed. For the hearing, CourtHelp suggests witness statements, your own sworn statement and any documents showing service did not happen as described.

Were the rules for the default itself followed?

Before entering a default judgment, the plaintiff must file proof of service, proof of the claim and of the default, and proof of the amount due (CPLR 3215(f)). Several extra rules protect individuals:

• In a case on a contractual debt against a person who never appeared, the plaintiff must also mail a copy of the summons to the person's residence, in a "personal and confidential" envelope that does not show it is from a lawyer or about a debt, at least 20 days before judgment is entered. That rule covers residential mortgage foreclosures too (CPLR 3215(g)(3)).
• In a consumer credit case brought by a debt buyer rather than the original creditor, the application must include an affidavit from the original creditor, an affidavit for each sale of the debt, and a witness affidavit tracing the chain of title (CPLR 3215(f)). Similar proof is required when medical debt is sued on by someone other than the hospital or health care professional. Whether the debt was too old to sue on at all is covered in whether you can be sued on an old consumer debt in New York.
• A clerk's default judgment needs an affidavit that, after reasonable inquiry, the statute of limitations has not expired (CPLR 3215(j)).
• If the plaintiff does not take steps to enter judgment within one year after the default, the court must dismiss the complaint as abandoned unless sufficient cause is shown (CPLR 3215(c)).

Two more limits come from the same rule. The clerk can enter a default judgment only for a sum certain, or a sum that can be made certain by computation; other claims need a judge (CPLR 3215(a)). And a default judgment cannot be larger than, or different in kind from, what the complaint demanded (CPLR 3215(b)), so comparing the judgment with the complaint is a quick first check. The one-year rule in CPLR 3215(c) applies in foreclosures too; see what happens if you missed the deadline to answer a foreclosure in New York.

How do you ask, and what happens to frozen money?

CourtHelp describes the usual path: ask the clerk of the court that issued the judgment for a complete copy of the file, including the affidavit of service, and file an order to show cause explaining the ground or grounds. In a consumer debt or tenant case, the court system's free DIY Form programs can prepare those papers. If wages are being garnished or a bank account holding exempt money is frozen, say so in the papers so the court knows the request is urgent. A judge signs the order to show cause and sets a return date (the hearing day), which CourtHelp says is usually eight days to three weeks after signing. The signed papers must be served on the other side's lawyer with proof of service filed.

The motion goes to the court that rendered the judgment (CPLR 5015(a)). For a judgment of the Supreme Court in Brooklyn, that is the courthouse covered in foreclosure and judgment defense for Brooklyn (Kings County) cases. On the return date, arrive on time: CourtHelp warns that if you are not there when the case is called, the court may treat you as a no-show.

If collection needs to pause while the motion is decided, ask for that in the same papers. The court in which an action is pending may grant a stay of proceedings in a proper case (CPLR 2201), and a separate rule lets the court limit or regulate any enforcement procedure (CPLR 5240); see how a court can limit or stop a creditor's collection efforts. If a paycheck is already being garnished, the weekly limits are explained in how much of your wages a creditor can take in New York.

A restraining notice ends once the judgment is vacated (CPLR 5222(b)), so vacating the judgment also ends the freeze; the steps for the account itself are in what to do when a restraining notice freezes your New York bank account. A judgment from another state that has been filed in New York can be vacated or stayed through the same procedures as a New York Supreme Court judgment, as explained in how out-of-state and federal judgments are enforced in New York.

What changes the answer for your default judgment?

A few facts change the route, each tied to a rule:

• Whether you were served with the judgment. The one-year limit for excusable default runs only from service of the judgment with written notice of its entry (CPLR 5015(a)(1)).
• How the summons reached you. CPLR 317 is open only to someone served by a method other than personal delivery, such as papers left with another person or on the door and then mailed (CPLR 308(2), (4)), who did not personally receive notice in time to defend and has a meritorious defense (CPLR 317).
• How long ago the judgment was entered. CPLR 317 must be used within one year after you learn of the judgment and closes five years after entry. A challenge for lack of jurisdiction has no fixed time limit (CPLR 5015(a)(4); CourtHelp).
• The kind of case. CPLR 317 does not apply to divorce, annulment or partition, and the extra 20-day mailing in CPLR 3215(g)(3) does not apply in small claims or eviction cases (CPLR 3215(g)(3)(iii)).

For example: a frozen account and an affidavit of service

Common mistakes when fighting a default judgment

• Explaining hardship instead of a defense. Not being able to pay right now is not a defense to the debt.
• Skipping the affidavit of service. It decides which ground fits and is the core of any traverse hearing.
• Letting the year run. Once you have been served with the judgment and notice of entry, the excusable-default clock is running, and talks with the creditor do not stop it (CPLR 5015(a)(1)).
• Filing an appeal instead of a motion. CPLR 5511 bars an appeal from your own default; the request goes to the court that entered the judgment.
• Missing the return date. If you are not there when the case is called, the court may not hear your request that day.

What to do this week

1. Write down when and how you first learned of the judgment, and keep every notice with its envelope. The CPLR 317 clock runs from when you learned of the judgment.
2. If a bank account is frozen and holds exempt money, mail or deliver the exemption claim form within 20 days of the date on the envelope it came in (CPLR 5222-a).
3. Get the complete court file, including the affidavit of service, from the clerk of the court that entered the judgment.
4. Compare the affidavit with the facts: where you lived on that date, who lived with you, and whether a copy was mailed. Gather a lease, bills or witness statements that prove it.
5. Compare the judgment amount with the complaint, and if a debt buyer sued, look for the original creditor's affidavit and the chain of title.
6. Pull together the papers on our judgment enforcement consultation checklist and speak with a lawyer before any deadline or return date.

Frequently asked questions

Can I appeal a default judgment instead?

Generally no. CPLR 5511 allows an appeal from an appealable judgment except one entered upon the default of the party who wants to appeal. The path is a motion or order to show cause in the court that entered the judgment (CPLR 5015(a)).

Does vacating the judgment end the case?

Not by itself. CourtHelp explains that the case is reopened with a new hearing date, and the judge decides it after hearing your defense. A win on bad service may end in a dismissal without prejudice, which lets the plaintiff start over.

Will I get back money that was already taken?

Possibly. When a judgment is vacated, the court may direct and enforce restitution in the same way as when a judgment is reversed on appeal (CPLR 5015(d)).

What if the creditor agrees to vacate?

The parties, personally or through their lawyers, can sign a stipulation consenting to vacatur. Once it is filed, the clerk may vacate a default judgment entered under CPLR 3215 without a motion (CPLR 5015(b)).

What if the judgment is against my company?

If a corporation was served under Business Corporation Law 306(b), a default judgment against it needs proof that the summons was also mailed to the corporation's last known address at least 20 days before entry (CPLR 3215(g)(4)). That gives a business owner one more thing to check in the court file.

How long does a default judgment last if I do nothing?

A docketed money judgment is a lien on your real property in that county for ten years after the judgment-roll is filed (CPLR 5203), and the judgment is presumed paid twenty years after the creditor could first enforce it, unless you acknowledged it in writing or made a payment (CPLR 211(b)). We explain renewals and interest in how long a New York judgment lasts.