You are here: / / A DEFENDANT WHO MOVES TO VACATE A DEFAULT JUDGMENT FOR LACK OF PERSONAL...
,

A DEFENDANT WHO MOVES TO VACATE A DEFAULT JUDGMENT FOR LACK OF PERSONAL JURISDICTION DOES NOT NEED TO DEMONSTRATE A REASONABLE EXCUSE FOR THE DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to vacate a default judgment for lack of personal jurisdiction should not have been treated as a motion to vacate based on an excusable default. The defendant raised a question of fact about whether he was properly served by demonstrating the address at issue did not exist. There was no requirement that defendant demonstrate a reasonable excuse:

Where, as here, a defendant moves to vacate a judgment entered upon [the defendant’s] default in appearing or answering the complaint on the ground of lack of personal jurisdiction [under CPLR 5015 (a) (4)], the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” … . Thus, contrary to the court’s determination, it is immaterial when defendant first learned of the judgment.

With respect to the merits, defendant contended in support of his motion that the court lacked personal jurisdiction over him because he was not properly served with the supplemental summons and amended complaint pursuant to CPLR 308 (4) (see CPLR 5015 [a] [4]). “Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served[, but] . . . a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit” … . We agree with defendant that, by submitting uncontradicted evidence that the address listed in the affidavit of service does not exist, he overcame the presumption of proper service and created “a genuine question” whether the “nail and mail” service used here was effected in accordance with the statute … . L&W Supply Corp. v Built-Rite Drywall Corp., 2023 NY Slip Op 05079, Fourth Dept 10-6-23

Practice Point: Here defendant was purportedly served by “nail and mail.” Defendant demonstrated the address in the affidavit of service did not exist. Therefore defendant was entitled to a hearing. There was no need for defendant to demonstrate a reasonable excuse for the default.

 

You might also like
Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence
DEFENDANT DOG OWNER’S ACKNOWLEDGMENT SHE HAD HEARD THAT ONE OF HER DOGS NIPPED A BOY IN A PRIOR INCIDENT WAS NOT ADMISSIBLE EVIDENCE OF THE FACTS OF THE INCIDENT; THEREFORE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
THE DEFENDANT DROVE THE SHOOTER TO AND AWAY FROM THE MURDER SCENE; BUT THERE WAS NO EVIDENCE DEFENDANT SHARED THE SHOOTER’S INTENT TO KILL; DEFENDANT’S MURDER CONVICTION AS AN ACCOMPLICE WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).
THE APPLICABLE INDUSTRIAL CODE PROVISION APPLIES TO MORE THAN JUST THE OBSTRUCTION OF PASSAGEWAYS; IT ALSO APPLIES TO BUILDING MATERIAL WHICH IS NOT PROPERLY STORED AND SECURED (AND FALLS); PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).
THE SEVERE EMOTIONAL DISTRESS ELEMENT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT REQUIRE OBJECTIVE MEDICAL EVIDENCE (FOURTH DEPT).
DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).
AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).
Performance and Design Specification Contracts Defined

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

PETITIONER SEX OFFENDER WAS ENTITLED TO A HEARING WITH LIVE WITNESSES AT WHICH... IN ORDER FOR THE ARREST IN CORTLAND COUNTY ON A JEFFERSON COUNTY WARRANT TO...