You are here: / / ALTHOUGH VOLUNTARY PAYMENTS ON A DEFAULT JUDGMENT MAY WAIVE THE PERSONAL...
,

ALTHOUGH VOLUNTARY PAYMENTS ON A DEFAULT JUDGMENT MAY WAIVE THE PERSONAL JURISDICTION DEFENSE TO THE FAILURE TO MOVE TO VACATE A DEFAULT JUDGMENT WITHIN A YEAR, HERE THE GARNISHMENT OF DEFENDANT’S WAGES FOR MORE THAN A YEAR DID NOT WAIVE THE DEFENSE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not waive the personal jurisdiction defense (CPLR 5015(a)(4)) by waiting more that a year to move to vacate the default judgment, despite the garnishment of defendant’s wages during that time. Voluntary payments on a default judgment would have waived the defense, but not garnishment:

The proper approach for determining whether a defendant has waived the CPLR 5015(a)(4) personal jurisdiction defense involves the consideration of whether the defendant’s particular actions amount to “an intentional relinquishment of a known right” … , and results from the taking of some affirmative action evincing the intent to accept a judgment’s validity — such as the making of voluntary payments to satisfy a default judgment prior to moving to vacate … . The mere fact that a defendant, like defendant here, was subject to payments pursuant to a wage garnishment order for more than one year without taking some action is not, without more, a proper basis for finding waiver of the ability to seek relief under CPLR 5015(a)(4) … . Esgro Capital Mgt., LLC v Banks, 2023 NY Slip Op 06312, First Dept 12-7-23

Practice Practice: Making voluntary payments on a default judgment would waive a defendant’s personal-jurisdiction defense to the failure to move to vacate a default judgment within a year. But the garnishment of defendant’s wages for more than a year did not waive the defense.

 

You might also like
ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT).
THE COMPLAINT ALLEGED THE ICY CONDITION EXISTED BEFORE 10 INCHES OF SNOW FELL, DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE NOTICE OF THE ICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Breach of Fiduciary Duty Allegations Not Specific Enough
TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM.
PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​
State Equal Access to Justice Act 
TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).
NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY, ATTORNEY WORK PRODUCT PROTECTION MAY APPLY.

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

ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION,... PETITIONER, A NOT-FOR-PROFIT LOCAL DEVELOPMENT CORPORATION, WAS PROPERLY FOUND...