How to vacate a default judgement in New York is something every potential litigant should know. It is a topic filled with cautionary tales of second chances, heartache and redemption, as we have talked about in the past. It also demonstrates the importance of thinking outside the box when you try to solve an otherwise intractable problem.
Normally, when a Defendant comes to you for help vacating a default, he is in a state of panic; the only question is how much. Bad things can happen if the default stands; a defendant might have to pay a judgement on a claim that it could have been able to defeat on the merits. There are ways to ameliorate the damage; but the best course is to avoid a default if possible.
Sometimes, the best way to fix a problem is to view it with an open mind and approach it without any preconceived notions. Sometimes the best way to change the end result is to go back to the beginning. Vacating a default judgement is no different. Sometimes the best way to vacate a default judgement is to determine when exactly the Defendant’s deadline to answer was, and determine how much he missed it by, if he really missed it at all.
When someone, whether a business or a person, is sued, when does it have to answer the complaint or take some other sort of action to make sure it can defend itself, in court, on the merits? In New York, the answer is, as most answers seem to be, dependent on the circumstances: the method of service or how the Defendant receives the summons and complaint; the court in which it is sued; where the Defendant is when it receives the service of process; and how many copies of the summons and complaint it ultimately receives. Maybe the most surprising of all is that in New York, a Defendant’s deadline to answer can depend upon what the Plaintiff does after it serves the summons and complaint on the Defendant.
CPLR §308 governs how a summons and complaint can be served upon a natural person in New York. One of the most common methods is CPLR § 308 (2) service; the statute provides, in relevant part:
Personal service upon a natural person shall be made by any of the following methods:* * *
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or…
When a Defendant is served with a Summons and Complaint pursuant to CPLR §308(2), his time to answer is governed by CPLR § 3012(c), which provides, in relevant part:
(c) Additional time to serve answer where summons and complaint not personally delivered to person to be served within the state. If the complaint is served with the summons and the service is made on the defendant by delivering the summons and complaint to an official of the state authorized to receive service in his behalf or if service of the summons and complaint is made pursuant to section 303, paragraphs two, three, four or five of section 308, or sections 313, 314 or 315, service of an answer shall be made within thirty days after service is complete.
In other words, when a Defendant is served with a summons and complaint pursuant to CPLR §308(2), he has thirty days to answer, but his thirty days does not start to run until ten days after the Plaintiff files the affidavit of service for the summons and complaint with the court. The best, and most common, course is to pay no attention to when the affidavit of service is filed but instead to answer the complaint within the initial thirty days after the summons and complaint is served, or to request, and receive, an extension of time to do so before those thirty days expire.
If a mistake does happen, however, it is worthwhile to verify when the Plaintiff actually filed the affidavit of service with the court, because the Defendant might actually have had significantly more time than it thought to answer the complaint. Since there are many cases that vacate defaults when the Defendant served its answer only a short time past the deadline, the Defendant could make it easier for the court to grant him a reprieve if he can show that the deadline was closer to when he actually served an answer. It may not take all that much effort to verify when the affidavit of service of the summons and complaint was filed with the court, but it could pay off in a big way.
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