One year is considered the magic number when trying to vacate a default judgment. But why?
New York law states that a person who is not personally served with a summons and complaint has one year from learning about the judgment to defend the case and vacate the judgment.
According to New York Civil Practice Law and Rules, Section 317:
Defense by person to whom summons not personally delivered. A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.
Three factors come into play here:
- Understanding what it means to be served with a summons other than personal delivery
- What defines knowledge of a judgment
- What defines a meritorious defense
Delivery of the Summons and Complaint
Personal service means directly handing the papers to the defendant or respondent. When and where you can serve papers is generally flexible. However, you can’t serve papers on Sunday or during a person’s days of religious observance.
What Defines Knowledge of a Judgment?
CPLR § 317 states that the judgment must be vacated within a year of “knowledge of the entry of the judgment.” So understanding what constitutes knowledge of the judgment is key.
When did you learn that judgment was entered against you? It might have been when your bank account was restrained, an income execution served, or when the lawyer sent a copy of the judgment to you.
A Meritorious Defense
You need to show the court that you have a meritorious defense to the allegations in the complaint. Such defenses could be that you dispute the plaintiff’s allegations, the amount the plaintiff is suing for is incorrect, or the plaintiff is suing the wrong party.
Ultimately, if you aren’t personally served, you have one year from learning about the judgment to try to vacate the default judgment. Successfully vacating the judgment will depend on whether or not you have a meritorious defense.
If you are trying to vacate a default judgment, contact Frank, Frank, Goldstein and Nager for a consultation.
