In this Bronx Civil Court default judgment contest, the debtor was not represented by an attorney and did not review the court file prior to filing a motion to vacate judgment. The judgment debtor was unaware of the date or manner in which the process server documents showed the lawsuit was delivered. Accordingly, the defendant failed to specifically dispute the judgment creditor’s evidence of service of the summons.
The judge allowed the defendant to re-make a motion to vacate the default judgment.
Under the CPLR motion to renew & vacate judgment requires the moving party to provide the court with fresh evidence not previously available to support the case.
The reason the judge granted renewal and re-argument of the motion in this case is that because it involved an old judgment, court files in archives were not readily available for the defendant to review at the time of filing the original motion.
In renewing her motion to excuse the default, the defendant successfully disputed the affidavit of service with her sworn testimony that she no longer resided at the property where the Summons was served.
The creditor opposed the motion by arguing the process server documents were in fact available to the defendant at the time of her first motion. The defendant could have requested the file from the court’s archives or from the plaintiff’s attorneys. Because the defendant failed to make reasonable attempt to obtain the court file, the creditor argued a second chance should not be provided.
In ruling against the creditor, the court noted its disagreement with plaintiff’s assertion as to the availability of the court records.
Moreover, the court found that where service of the summons is invalid, the court lacks personal jurisdiction over the defendant and accordingly cannot enter a default judgment against her. Therefore, the court scheduled a hearing to determine whether the default judgment should be vacated on the grounds of invalid service of process.
If a default judgment has been entered against a debtor in court, the defendant should carefully read the process server’s affidavit of service to determine how the plaintiff alleged she was served. In this case, the defendant needed to rebut the evidence of proper service in order to get the default judgment vacated.
Don’t take chances like the defendant in this case. If you need help obtaining and reviewing the court file to vacate a default judgment, contact us anytime.