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Credibility Issues Snag Defendant In Effort to Vacate Default Judgment (NY)

August 31, 2017

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The Supreme Court, New York County, was recently faced with a motion to vacate a default judgment. To vacate judgment, a defendant must produce a reasonable excuse and a potentially meritorious defense.  If this burden is met, whether to vacate the default rests in the sound discretion of the Court.  In <em>Hyman v. 400 West 152<sup>nd</sup> St.</em> the Court found unpersuasive the many arguments raised by a defendant who sought to vacate a judgment that had already been partially executed upon by the City Marshall.
The claim arose out of an alleged slip and fall on ice on property owned by the defendant. Although the plaintiff served the complaint on the defendant and followed up with at least eight letters, the defendant claimed that it received no notice of the claim much less the litigation.  The defendant asserted that the mail was notoriously bad for the building and that a letter advising of the judgment was only found in the lobby after the City Marshall called regarding assets to be seized. The defendant produced no letters to the post office or other documentation that supported any previous issues with mail service.  The court found that the defendant was simply not credible given these facts.
The Court was also unpersuaded by defendant’s argument that it would have no reason to lie regarding lack of notice since it would have forwarded any lawsuit to its insurance carrier.  This theory was undercut by the plaintiff, who produced a disclaimer letter from plaintiff’s insurer for the claim.
The ruling of the Supreme Court provides an invaluable lesson to those seeking to set aside a default judgment. When preparing a motion to vacate a judgment, the defense needs to present a credible explanation of why it failed to timely answer a complaint.  An affidavit can do so, but it must be backed by facts of an objectively reasonable nature.
Thanks to Christopher Gioia for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.

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