New York Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   CPLR 5015(a) lets the court that rendered a judgment or order relieve a party from it upon such terms as may be just, on one of five grounds: excusable default, newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404, fraud or misconduct of an adverse party, lack of jurisdiction, or reversal or vacatur of a prior judgment it is based on.

2. 2

   The excusable default clock is short and has a specific trigger. The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry on the moving party, or within one year after entry if the moving party entered it.

3. 3

   CPLR 317 is a separate track. A defendant served other than by personal delivery who did not appear may be allowed to defend within one year after obtaining knowledge of entry of the judgment, but not more than five years after entry, if the court finds they did not personally receive notice of the summons in time to defend and have a meritorious defense. CPLR 317 does not apply to an action for divorce, annulment or partition.

4. 4

   For excusable default, the New York courts' self-help guidance says you must show a good reason why you missed court or did not answer, and a good defense to the case. If you ask because of bad service, you do not need to give any other reason, but you will have to prove the service was bad at a Traverse Hearing.

5. 5

   Filing does not by itself stop enforcement. If wages are being garnished or a bank account is frozen, say so in the Order to Show Cause and ask the court for a stay.

6. 6

   Relief is usually sought by Order to Show Cause. The courts offer free DIY Form programs to make the papers for vacating a default judgment in a consumer debt or landlord-tenant case. If you can't use them, you can ask the Court Clerk for an Order to Show Cause.

7. 7

   If the judgment was entered by default, also see the New York set aside default judgment page at /legal-document/set-aside-default/new-york for the default-specific steps.

New York Requirements for Motion to Vacate

• Five Enumerated Grounds

  CPLR 5015(a): excusable default; newly discovered evidence that would probably have produced a different result and could not have been discovered in time for a CPLR 4404 new-trial motion; fraud, misrepresentation or misconduct of an adverse party; lack of jurisdiction; or reversal, modification or vacatur of a prior judgment it is based on.

• Excusable Default Deadline

  CPLR 5015(a)(1): within one year after service of a copy of the judgment or order with written notice of its entry on the moving party, or one year after entry if the movant entered it.

• CPLR 317 Track

  CPLR 317: a defendant served other than by personal delivery who did not appear may be allowed to defend within one year after obtaining knowledge of entry, no more than five years after entry, on a court finding of no personal notice of the summons in time to defend and a meritorious defense. Not available in an action for divorce, annulment or partition.

• Ask for a Stay

  Filing does not by itself stop enforcement. State urgent reasons such as garnishment or frozen accounts in the Order to Show Cause and request a stay. CPLR 5015(d) allows restitution on vacatur.

• Clerk and Administrative Vacatur

  CPLR 5015(b): the clerk may vacate a CPLR 3215 default judgment on a stipulation of consent. CPLR 5015(c): an administrative judge may bring a proceeding on a showing that default judgments were obtained by fraud, lack of due service or other illegalities, in a number he deems sufficient.

• Order to Show Cause Papers

  Ask the court by Order to Show Cause, stating the judgment dates and the ground relied on. For excusable default, include a reasonable excuse and a good defense; for bad service, no other reason is needed.