Need to Vacate a Default Judgment? Include Good "Excuses" for Not Defending

Do you need to stop judgment-enforcement activity (i.e. wage garnishment or bank restraint)? Do you need to seek relief against the judgment (i.e. have it "vacated")?

New York law (CPLR § 5015) contains the primary means to "set aside" or "vacate" a judgment. Although bad service of papers is often alleged as a stand-alone basis to vacate a judgment, I always recommend providing any and all excuses/reasons why you couldn't appear in court to defend even if you had been properly served with papers. I would further recommend that you describe in detail all defenses you may have to the case (i.e. inaccurate amount, lack of standing, statute of limitations).

The below are just some excuses that have been used to convince a court that a failure to "appear" in court was reasonable.

  • Absence, unavailability, or ineffective assistance of counsel
  • Employment obligations
  • Clerical errors by court
  • False representation by opposing party
  • Duress
  • Fear of harm
  • Death, illness, or disability of party, family member, or counsel
  • Address change
  • Incarceration
  • Lack of required court notices
  • Fraud
  • Language shortcomings
  • Residence outside of court jurisdiction

A judge has discretion whether to honor or reject your offered excuse(s). Using any of the above is no guarantee that you'll succeed. Other factors will need to be considered in your case (for example, time delay, opportunity to defend, strength of defenses, and credibility).

You would be wise to mount an aggressive challenge using plenty of facts to support your legal position. We would be delighted to discuss your case with you. Feel free to complete a short intake form on this site, or call.

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