CAN YOU VACATE A DEFAULT OF OVER 20 YEARS

All depends on the circumstances, the grounds for vacatur and then there can be caveats.

HERSZDORFER v. Maimonides Med. Ctr., 2023 NY Slip Op 50623 - Kings Supreme Court 2023:

"Determination of Justice Walker's OSC (Mot. Seq. Four)

Defendant's Request to Vacate Default Judgment Under CPLR §5015(a)(3)

As noted, a portion of Justice Walker's OSC sought an order, pursuant to CPLR §5015(a)(3), vacating the default judgment "based on [the alleged] misrepresentation and misconduct of [plaintiff] in obtaining such default judgment." As grounds for plaintiff's alleged "misrepresentation and misconduct," defendant contended that: (1) plaintiff's service of the note of issue on January 10, 1996 at the 8th Avenue address was improper because plaintiff knew (or should have known) that defendant had not conducted business at that address for more than a year; (2) plaintiff failed, "upon information and belief," to serve the order on default with notice of entry on defendant; and (3) plaintiff further failed, likewise "upon information and belief," to serve the default judgment with notice of entry on defendant (Justice Walker's OSC, pages 3-4, Subsection b[i]-[iii]).^[17]

CPLR §5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of "fraud, misrepresentation, or other misconduct of an adverse party." Here, the circumstances cited by defendant did not establish that plaintiff procured the default judgment by fraud, misrepresentation, or other misconduct. Contrary to defendant's first contention (in Subsection b [i] at pages 3-4 of Justice Walker's OSC), plaintiff's service of the note of issue on January 10, 1996 at his prior address on 8th Avenue did not amount to fraud, misrepresentation, or other misconduct, particularly in light of defendant's admission that he had notified the USPS of the forwarding address to the Ft. Hamilton Parkway office. Defendant's second contention (made upon "information and belief" in Subsection b [ii] at page 4 of Justice Walker's OSC) that plaintiff failed to serve him with the order on default with notice of entry was refuted by plaintiff's (former) counsel's affidavit of service, dated October 12, 1993, averring that defendant was served with a copy of the order on default, with notice of entry, at the 8th Avenue address by first-class mail (NYSCEF Doc. No. 21 at page 85 of 99). Third and finally, plaintiff's conceded failure to serve the default judgment with notice of entry on defendant did not amount to fraud, misrepresentation, or other misconduct. Thus, vacatur of the default judgment pursuant to CPLR §5015(a)(3) is unwarranted. Compare Li Xian v. Tat Lee Supplies Co., Inc., 126 AD3d 424, 2 N.Y.S.3d 344 (1st Dept. 2015) (cited by defendant) ("[The] Defendant demonstrated that plaintiffs' motion for a default judgment was granted, in part, based on plaintiffs' counsel's incorrect representation that [the] defendant's old address was the `only known' address for service of the additional summons . . ., when, in fact, plaintiffs' sublease provided another address for service of legal notices on [the] defendant.") (underlining added).

Defendant's Request to Vacate Default Judgment Under CPLR §§317 and 5015(a)(1)

Alternatively, defendant (via Justice Walker's OSC) sought vacatur of the default judgment pursuant to CPLR §§317 and 5015(a)(1), on the grounds of a reasonable excuse and a potentially meritorious defense. CPLR §317 states, in pertinent part, that "[a] person served with a summons other than by personal delivery . . . who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he [or she] did not personally receive notice of the summons in time to defend and has a meritorious defense" (underlining added). Defendant's reliance on CPLR §317 as a predicate for vacatur of the default judgment is unavailing because he sought to vacate it by Justice Walker's OSC, dated May 9, 2016, more than eighteen years after its entry on January 5, 1998. See Wells Fargo Bank, N.A. v. Tricarico, 139 AD3d 722, 32 N.Y.S.3d 213 (2d Dept. 2016); Anderson v. GHI Auto Serv., Inc., 45 AD3d 512, 845 N.Y.S.2d 129 (2d Dept. 2007).^[18]

Turning to CPLR §5015(a)(1), the Court notes that a CPLR §5015(a)(1) motion must be "made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party." Inasmuch as the default judgment was never served with notice of entry on defendant, the one-year deadline for making a CPLR §5015(a)(1) motion did not begin to run. Therefore, defendant's explicit request for vacatur of the default judgment under CPLR §5015(a)(1) was timely. To the extent defendant implicitly sought vacatur of the order on default, such request would be untimely because, as stated above, the order on default with notice of entry was served on defendant on October 12, 1993, or more than twenty years before Justice Walker's OSC of May 9, 2016.

The timeliness of defendant's request for vacatur of the default judgment under CPLR §5015(a)(1) does not end the inquiry, however. "A party seeking to vacate a default judgment pursuant to CPLR §5015(a)(1) must demonstrate [1] a reasonable excuse for the default and [2] a potentially meritorious defense to the action." Gleizer v. Gleizer, ___ AD3d ___, ___ N.Y.S.3d ___, 2023 NY Slip Op. 02648 (2d Dept. 2023). "The determination of what constitutes a reasonable excuse is generally left to the sound discretion of the Supreme Court." Blazo v. Wyckoff Hgts. Med. Ctr., 125 AD3d 705, 4 N.Y.S.3d 99 (2d Dept. 2015). Here, defendant met the "reasonable excuse" requirement because (as discussed below) he was not served with notice of inquest in accordance with CPLR §3215(g)(1), nor was he served with the default judgment with notice of entry. Defendant, however, failed to meet the "potentially meritorious defense" requirement for three reasons. First, defendant failed to submit an expert affirmation.^[19] Second, he failed to submit any portion of his medical records for plaintiff's decedent; particularly, the portion reflecting his contention (in ¶ 30 of his opening affidavit at NYSCEF Doc. No. 6) that "[w]hen appropriate, [he] referred [plaintiff's decedent] to a specialist." Finally and crucially, not only were his own affidavits averring to the absence of medical malpractice self-serving and conclusory (as reproduced in the margin^[20]), but they were also without probative value because his license as a physician was revoked in November 2000, or approximately fifteen years before he moved to vacate the default judgment in May 2016. Thus, vacatur of the default judgment pursuant to CPLR §317 and/or 5015(a)(3) is also unwarranted. See generally Langona v. Village of Garden City, 203 AD3d 1038, 162 N.Y.S.3d 741 (2d Dept. 2022); Diaz v. Ralph, 66 AD3d 819, 886 N.Y.S.2d 617 (2d Dept. 2009).

Defendant's Request to Vacate Default Judgment in the Interests of Substantial Justice

Lastly, defendant sought to invoke this Court's inherent discretionary powers to vacate the default judgment in the interests of substantial justice. It is well established that "[i]n addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice." Woodson v. Mendon Leasing Corp., 100 NY2d 62, 760 N.Y.S.2d 727 (2003). "A motion to vacate a default is addressed to the sound discretion of the motion court." HSBC Bank USA, N.A. v. Alexis, 195 AD3d 600, 149 N.Y.S.3d 517 (2d Dept. 2021).

Here, vacatur of the default judgment is appropriate, in the interests of substantial justice, for two reasons: (1) lack of service on defendant of the default judgment with notice of entry; and (2) lack of service on defendant of notice of inquest — both being the necessary predicates to the enforceability of the default judgment against defendant. "[I]t is axiomatic that before an order [or judgment] may be enforced, notice of such order [or judgment] must be given to the party against whom it is sought to be enforced." Wells Fargo Bank, N.A. v. Frierson, 150 AD3d 1045, 55 N.Y.S.3d 332 (2d Dept. 2017); see also CPLR §2220(b). "Where the rights of a party are or may be affected by an order [or judgment], the successful moving party, in order to give validity to the order [or judgment], is required to serve it on the adverse party." McCormick v. Mars Assoc., Inc., 25 AD2d 433, 265 N.Y.S.2d 1004 (2d Dept. 1966). Inasmuch as the default judgment with notice of entry was never served on defendant, its vacatur is appropriate, as more fully set forth in the decretal paragraphs below. See Fried v. Carlucci & Legum, Cascione, Chechanover & Purcigliotti, P.C., 309 AD2d 829, 766 N.Y.S.2d 83 (2d Dept. 2003).^[21]

The additional reason for vacatur of the default judgment in the interests of substantial justice is a lack of notice to defendant of the underlying notice of inquest. Where, as here, more than one year had elapsed since defendant's default in appearing and answering, he was entitled to at least five days' notice of the time and place of the inquest pursuant to CPLR §3215(g)(1). See New York Tel. Co. v. Don Siegel Const. Co., Inc., 1 AD3d 329, 766 N.Y.S.2d 874 (2d Dept. 2003); Astron Steel Fabrications, Inc. v. Kent Restoration, Inc., 283 AD2d 381, 723 N.Y.S.2d 860 (2d Dept. 2001). Plaintiff's reliance on 21st Mtge. Corp. v. Raghu, 197 AD3d 1212, 154 N.Y.S.3d 84 (2d Dept. 2021), in support of his contrary position, that notice of inquest was not required to be served on defendant, is misplaced. The Second Department's holding in 21st Mtge. Corp. that "CPLR 3215(g)(1) did not require the plaintiff to give [the defendant] notice of its motion to confirm the referee's report and for a judgment of foreclosure and sale," is limited to the mortgage-foreclosure context, as illustrated in the margin.^[22]

All the foregoing said, there are two relevant caveats. First, vacatur of the default judgment requires that an inquest be held anew. Defendant will be "entitled at [such] inquest to cross-examine witnesses, give testimony, and offer proof in mitigation of damages." Golden v. Romanowski, 128 AD3d 1009, 9 N.Y.S.3d 653 (2d Dept. 2015). Second, vacatur of the default judgment does not in any way affect the continued validity of the order on default. Defendant's contentions that the complaint was insufficient and was unaccompanied by a certificate of merit are precluded by the order on default which remains in full force and effect.'