Wade Clark Mulcahy LLP

When a plaintiff obtains a default judgment against a defendant, sometimes the fight is far from over. While the discretion ultimately remains with the court, a default judgment may be vacated against a defendant, or an inquest will be held if the motion to vacate is denied. However, even after an inquest is held and damages are determined, a plaintiff must submit a notice of settlement and proposed judgment within 60 days or else it will be void. 22 NYCRR 202.48(a)

For example, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/Cruz-v.-Pierce.pdf">Cruz v. Pierce</a>, </em>2022 NY Slip Op 07054 (2^nd Dep’t December 14, 2022) the plaintiff was injured while performing work at real property that was owned by the defendant. After being served with the summons and complaint, the defendant failed to answer.

Plaintiff subsequently moved for leave to enter a default judgment. The Court not only granted the motion but directed an inquest for damages. At the close of the inquest, Plaintiff was entitled to recovering $274,541.54. The Court directed the plaintiff to settle judgment on notice.

Thereafter, the plaintiff failed to submit a notice of settlement and proposed judgment until nearly 2 years after the order. Accordingly, the defendant moved to vacate the decision made after the inquest based upon the plaintiff’s failure to submit the notice of settlement and proposed judgment within 60 days as the Court directed them to.

Accordingly, the Second Department granted the Defendant’s motion on the grounds that the plaintiff failed to timely settle the judgment pursuant to 22 NYCRR 202.48(a) and on plaintiff’s failure to show good cause for his lengthy delay in submitting the notice. This case shows that the procedural rules must always be followed – or not, at your own peril.

Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.