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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, referred to as "meritorious" defenses since they're supposed to have "merit." Examples of meritorious defenses could include the inaccurate amount, lack of standing, or the expiration of the 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.

  • Physically not present in the county, state, or United States
  • Residence outside of court jurisdiction
  • Ineffective assistance of a prior attorney
  • Employment obligations
  • Business Emergency
  • Clerical errors by the court
  • Lack of required court notices
  • Misplaced documents
  • False representation by the opposing party
  • Duress
  • Death, illness, or disability of party, family member, or attorney
  • Address change
  • Incarceration
  • Fraud
  • Language barrier
  • Unfamiliarity with the legal process

A judge has discretion whether to honor or reject your offered excuses. 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).

Using plenty of facts to support your legal position, you would be wise to mount an aggressive challenge. We would be delighted to discuss your case with you. Feel free to complete a short intake form.