Vacating a Default Judgment

Discovering that a default judgment has been entered against you can be an alarming experience. You may have learned about it only after your bank account was frozen, your wages were garnished, or a judgment appeared on a background check. In many cases, New Yorkers never received proper notice of the lawsuit in the first place. Fortunately, New York law provides several powerful mechanisms for vacating — that is, undoing — a default judgment and restoring your right to defend yourself in court.

Our firm represents individuals and businesses throughout New York City who need to vacate default judgments in the Civil Court of the City of New York, the Supreme Court, and other New York courts. This page explains what a default judgment is, the legal grounds for vacating one under New York law, the deadlines that apply, and the step-by-step process for getting your day in court.

What Is a Default Judgment in New York?

A default judgment is a judgment entered against a defendant who failed to respond to a lawsuit or failed to appear in court. Under CPLR 3215, when a defendant does not answer a complaint or appear on a scheduled court date, the plaintiff may apply for a judgment by default. Once entered, that judgment carries the same legal force as a judgment obtained after a full trial — even though the defendant never presented a defense.

Default judgments are extraordinarily common in New York City, particularly in consumer debt collection cases, credit card lawsuits, landlord-tenant proceedings, and personal injury actions. Many defendants default not because they ignored a lawsuit, but because they never actually received the court papers. Improper service of process — sometimes called "sewer service" when a process server falsely claims to have delivered papers — has been a well-documented problem in New York City courts for decades.

The Consequences of a Default Judgment

A default judgment is not a minor inconvenience. Once a judgment creditor obtains a default judgment, New York law gives them aggressive enforcement tools, including:

• Bank account restraints: A judgment creditor can serve a restraining notice on your bank, freezing funds in your account up to twice the judgment amount, subject to statutory exemptions.
• Wage garnishment: Through an income execution, a creditor can garnish up to ten percent of your gross wages.
• Property liens: A judgment docketed with the county clerk becomes a lien on any real property you own in that county, which can block a sale or refinance.
• Accruing interest: New York judgments generally accrue post-judgment interest, so the amount owed grows every year the judgment remains unpaid.
• Damage to credit and reputation: Judgments can surface in tenant screening reports, employment background checks, and lending decisions.

Because these consequences are severe, acting quickly to vacate a default judgment is essential. In many cases, moving to vacate can also result in a court order staying (pausing) enforcement while the motion is decided.

Legal Grounds for Vacating a Default Judgment in New York

New York law provides several distinct legal bases for vacating a default judgment. The two most important statutes are CPLR 5015 and CPLR 317, and courts also retain inherent discretionary power to vacate judgments in the interest of justice.

CPLR 5015(a)(1): Excusable Default

The most commonly invoked ground is CPLR 5015(a)(1), which allows a court to vacate a default judgment where the defendant demonstrates two things:

1. A reasonable excuse for failing to answer or appear; and
2. A potentially meritorious defense to the underlying claim.

A motion under CPLR 5015(a)(1) must generally be made within one year after the moving party is served with a copy of the judgment with written notice of its entry. Courts evaluate reasonable excuses on a case-by-case basis. Excuses that New York courts have found reasonable include:

• Never receiving the summons and complaint due to defective service
• Serious illness, hospitalization, or family emergency
• Law office failure by a prior attorney (a statutorily recognized excuse under CPLR 2005)
• Reasonable confusion about court dates or procedures
• Reliance on assurances from the plaintiff or its counsel that no action was needed

The meritorious defense requirement does not demand that you prove you will win — only that you have a genuine, non-frivolous defense. Examples include payment of the debt, expiration of the statute of limitations, mistaken identity, lack of standing by a debt buyer, incorrect account balances, or comparative fault in an injury case.

CPLR 5015(a)(4): Lack of Jurisdiction

If you were never properly served with the summons and complaint, the court never acquired personal jurisdiction over you — and the judgment is void. A motion to vacate under CPLR 5015(a)(4) based on lack of jurisdiction has significant advantages:

• No time limit: Because a judgment entered without jurisdiction is a nullity, a jurisdictional motion may be brought at any time, even years after entry.
• No meritorious defense required: If the court lacked jurisdiction, the judgment must be vacated regardless of the merits of the underlying claim, and the case may be dismissed outright.

When a defendant submits a sworn, detailed denial of service that rebuts the process server's affidavit — for example, showing that the physical description in the affidavit does not match, or that the defendant did not live at the address where service was allegedly made — the court will typically order a traverse hearing. At a traverse hearing, the plaintiff bears the burden of proving proper service by a preponderance of the evidence. If the plaintiff cannot meet that burden, the judgment is vacated and the action may be dismissed.

CPLR 5015(a)(2) and (a)(3): New Evidence and Fraud

New York law also permits vacatur where newly discovered evidence would probably have produced a different result, or where the judgment was procured through fraud, misrepresentation, or other misconduct of the adverse party. Fraud-based motions are particularly relevant where a plaintiff filed false affidavits of service or false affidavits of merit — issues that have arisen repeatedly in high-volume debt collection litigation in New York City.

CPLR 317: Defendants Not Personally Served

CPLR 317 provides an alternative route for defendants who were served by a method other than personal delivery — for example, substituted service on a co-resident, "nail and mail" service, or service on the Secretary of State for a corporation. Under CPLR 317, a defendant may be permitted to defend the action upon showing:

• They did not personally receive notice of the summons in time to defend; and
• They have a potentially meritorious defense.

Critically, CPLR 317 does not require the defendant to establish a reasonable excuse for the default. This makes it a valuable tool for corporations that never received papers served on the Secretary of State because their address on file was outdated, and for individuals whose papers were left with someone who never passed them along. A CPLR 317 motion must be made within one year after the defendant learns of the judgment, and no more than five years after entry of the judgment.

The Court's Inherent Power: Vacatur in the Interest of Justice

Beyond the statutory grounds, New York courts retain inherent discretionary authority to vacate their own judgments "for sufficient reason and in the interests of substantial justice." This flexible standard can capture compelling circumstances that do not fit neatly within CPLR 5015 or 317, though courts apply it sparingly.

Deadlines: How Long Do You Have to Vacate a Default Judgment?

The applicable deadline depends on the legal ground for your motion:

Even where no strict deadline applies, delay can hurt your credibility and your chances. Courts weigh how promptly a defendant moved after learning of the judgment. The best practice is to consult an attorney and move to vacate as soon as you discover the default.

The Process: How to Vacate a Default Judgment in New York City

While every case is different, a motion to vacate a default judgment in New York City generally proceeds through the following steps.

Step 1: Obtain the Court File

The first step is to identify the court where the judgment was entered — commonly the Civil Court of the City of New York for claims up to $50,000, or the Supreme Court for larger claims — and obtain the case file. The file will contain the summons and complaint, the affidavit of service, the plaintiff's default judgment application, and the judgment itself. The affidavit of service is often the single most important document, because inconsistencies in it can establish grounds for a jurisdictional challenge.

Step 2: Prepare the Order to Show Cause or Notice of Motion

Motions to vacate default judgments are typically brought by order to show cause, especially when enforcement is underway. An order to show cause is signed by a judge and can include an immediate stay of enforcement, temporarily halting bank restraints, garnishments, and marshal activity while the motion is pending. In the Civil Court of the City of New York, self-represented litigants can request an order to show cause at the clerk's office, but the supporting papers must still make the required legal showings — which is where experienced counsel makes a substantial difference.

Step 3: Draft the Supporting Affidavit

The motion must be supported by a sworn affidavit from the defendant setting out, in specific factual detail:

• How and when the defendant learned of the judgment
• Why the defendant did not answer or appear (the reasonable excuse), or the facts showing improper service
• The facts constituting a meritorious defense to the underlying claim

Conclusory statements are not enough. New York courts consistently deny motions supported only by vague assertions such as "I was never served" without corroborating detail, or "I don't owe the money" without explanation. A well-drafted affidavit, supported where possible by documents — bank statements, payment records, leases, identification showing a different address — dramatically improves the odds of success.

Step 4: Serve the Motion and Attend the Hearing

The motion papers must be served on the plaintiff or its attorneys in the manner the judge directs. On the return date, the court hears argument. The plaintiff may oppose the motion, and if service is contested with sufficient specificity, the court may schedule a traverse hearing at which the process server can be cross-examined.

Step 5: The Court's Decision and What Comes Next

If the motion is granted, the default judgment is vacated. Depending on the grounds, the court may dismiss the case entirely (typically where service was defective and the statute of limitations has run) or restore the case to the calendar, allowing you to file an answer and defend on the merits. Any funds restrained or garnished under the vacated judgment may be ordered returned. If the motion is denied, an appeal may be available.

Default Judgments in Consumer Debt Cases

A large share of default judgments in New York City arise from consumer credit lawsuits, many filed by debt buyers who purchased old accounts. Defendants in these cases often have strong defenses, including:

• Statute of limitations: New York imposes a three-year statute of limitations on consumer credit transactions, and payment on a time-barred consumer debt does not revive the claim.
• Lack of standing: Debt buyers must prove a complete chain of assignment from the original creditor; many cannot.
• Inability to prove the debt: Plaintiffs must produce admissible business records establishing the account and balance.
• Identity theft or mistaken identity: Judgments are frequently entered against the wrong person, particularly those with common names.

New York court rules also impose heightened proof requirements on plaintiffs seeking default judgments in consumer credit actions, including additional affidavits documenting the debt and its ownership. Where those requirements were not met, the default judgment itself may be vulnerable.

Why Work With an Attorney?

While it is possible to move to vacate a default judgment without a lawyer, the stakes and the technical requirements make experienced counsel invaluable. An attorney can:

• Identify the strongest statutory ground — and often multiple grounds — for vacatur
• Scrutinize the affidavit of service for defects that support a jurisdictional dismissal
• Draft a detailed, legally sufficient affidavit and memorandum of law
• Secure an immediate stay of bank restraints and wage garnishments
• Conduct the traverse hearing and cross-examine the process server
• Negotiate with the judgment creditor, including stipulations to vacate the judgment by consent
• Defend the underlying case on the merits once it is restored

In many cases, plaintiffs' attorneys — knowing their proof is weak — will agree to vacate the judgment and even discontinue the action once a credible motion is filed. Skilled advocacy can turn a frozen bank account into a dismissed lawsuit.

Frequently Asked Questions

Will filing a motion to vacate stop my wage garnishment or unfreeze my bank account?

Filing alone does not automatically stop enforcement, but a motion brought by order to show cause can include a request for a stay of all enforcement while the motion is pending. Judges in New York City courts routinely grant such stays in appropriate cases.

What if the judgment is many years old?

If the judgment was entered without proper service, it can be challenged at any time under CPLR 5015(a)(4). Other grounds carry shorter deadlines, so a prompt consultation is important to preserve all available options.

Do I get my money back if the judgment is vacated?

Courts have the authority to order restitution of amounts collected under a judgment that is later vacated. Recovering garnished wages or restrained funds is often part of the relief we pursue.

What happens after the judgment is vacated?

Either the case is dismissed or it is restored to active status, and you will have the opportunity to serve an answer, raise defenses and counterclaims, demand proof from the plaintiff, and litigate or settle the matter on fair terms.

Speak With a New York Default Judgment Attorney Today

A default judgment does not have to be the final word. New York law strongly favors resolving disputes on their merits, and courts vacate default judgments every day for defendants who present their motions properly and promptly. Whether your judgment arose from a consumer debt lawsuit, a commercial dispute, a personal injury claim, or any other civil action in New York City, our attorneys can evaluate your options, move quickly to protect your income and accounts, and fight to restore your right to be heard.

Time is critical. Contact our firm today for a confidential consultation about vacating your default judgment in New York City.

You can contact us by phone at 212-233-1233 or by email at [email protected].