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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.

 

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