You are here: / / ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST...
,

ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST ORDINARILY BE ACCOMPLISHED BY BRINGING A PLENARY ACTION, A MOTION TO VACATE IS APPROPRIATE WHERE IT IS ALLEGED THE COURT WHICH ENTERED THE JUDGMENT DID NOT HAVE SUBJECT MATTER JURISDICTION; HERE THE MOTION TO VACATE WAS THE CORRECT VEHICLE BUT THE MOTION WAS PROPERLY DENIED ON THE MERITS (SECOND DEPT).

The Second Department noted that ordinarily the only way to vacate a judgment entered by the filing of an affidavit of confession of judgment is a plenary action. However, if, as here, the ground for vacating the judgment is the lack of subject matter jurisdiction, a motion to vacate is proper. Here, although the motion was the proper vehicle, the court did have jurisdiction to enter the judgment:

“Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief” … . However, a claim that the court lacked the authority to enter the judgment is an exception to the general rule requiring a plenary action, and may be raised by a motion to vacate … . Thus, the defendants’ contention that the Supreme Court, Westchester County, lacked subject matter jurisdiction to enter a confession of judgment against them was properly raised by way of motion. Nevertheless, the contention is without merit. Pursuant to the version of CPLR 3218(b) applicable at the time the affidavit of confession was filed, “the clerk of the county designated in the affidavit” had authority to enter a judgment by confession against a nonresident defendant (former CPLR 3218[b]). Funding Metrics, LLC v A & A Fabrication & Polishing Corp., 2020 NY Slip Op 05724, Second Dept 10-14-20

 

You might also like
QUESTIONS OF FACT WHETHER THE CONTRACTOR HIRED TO WORK ON A SIDEWALK WAS RESPONSIBLE FOR MAKING SURE PEDESTRIANS HAD A SAFE PASSAGEWAY; PLAINTIFFS WERE STRUCK BY A CAR WHEN THEY WALKED IN THE PUBLIC STREET BECAUSE THE SIDEWALK WAS BLOCKED; THE THEORY OF LIABILITY APPEARS TO STEM FROM THE CONTRACTOR’S ALLEGED CREATION OF A DANGEROUS CONDITION UPON A PUBLIC STREET OR SIDEWALK (SECOND DEPT).
Late Motion for Judicial Approval of a Settlement Properly Denied—Delay In Seeking Approval Was Due to Plaintiff’s Own Fault or Neglect
DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED DURING THE EXECUTION OF A SEARCH WARRANT WHICH WERE NOT WITHIN THE SCOPE OF THE WARRANT; THE INCRIMINATING NATURE OF THE CREDIT CARDS WAS NOT IMMEDIATELEY APPARENT (SECOND DEPT). ​
ALTHOUGH DECEDENT’S BODY WAS DELIVERED TO THE WRONG FUNERAL HOME, PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT INTERFERED WITH PLAINTIFFS’ RIGHT OF SEPULCHER (SECOND DEPT).
City Immune from Liability for Actions of Police Engaged in a Governmental Function–No Special Relationship with Plaintiff
THE APPLICABILITY OF THE CHILD SUPPORT STANDARDS ACT (CSSA) WAS NOT ADEQUATELY WAIVED IN THE STIPULATION OF SETTLEMENT; THE CHILD SUPPORT PROVISIONS OF THE STIPULATION SHOULD HAVE BEEN VACATED (SECOND DEPT).
The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action
Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff’s Vehicle from Behind Was Negligent

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL... PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND...