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Motion to Vacate Default Based On Lack of Jurisdiction Need Not Demonstrate Reasonable Excuse Meritorious Defense

In finding Supreme Court should have held a hearing on whether defendant [Goldberger] was properly served with a complaint in a foreclosure action (in which the defendant did not appear), the Court noted that the fact defendant had unsuccessfully filed for bankruptcy after the judgment of foreclosure did not prevent him from contesting service of the foreclosure complaint.  The Court explained that where the motion to vacate a default judgment is based on a lack of personal jurisdiction, neither a reasonable excuse nor a meritorious defense need be demonstrated:

The Supreme Court erred in determining the motion without first conducting a hearing. Although the process server’s affidavit constituted prima facie evidence of proper service, Goldberger’s sworn claim that he did not reside at the subject premises, along with his submission of documentary evidence supporting that claim, was sufficient to rebut the prima facie showing, and to necessitate a hearing… . Contrary to the plaintiff’s contention, Goldberger is not judicially estopped from seeking vacatur of the judgment as a result of his filing of a bankruptcy petition. …Goldberger did not receive a favorable result in the bankruptcy proceeding by taking a position contrary to one he is taking in this action ….  …[A] party who moves to vacate a judgment entered on default on the ground of lack of personal jurisdiction is not required to demonstrate a reasonable excuse for the default or a potentially meritorious defense  … . Dime Sav Bank of Williamsburg v 146 Ross Realty, LLC, 2013 NY Slip Op 03451, 2nd Dept, 5-15-13

 

 

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