Vacating a New York default judgment: CPLR 5015, CPLR 317, and which one fits

New York has two separate statutes for undoing a default, and they don't ask the same questions. One asks why you defaulted. The other asks how you were served.

CPLR 5015(a) — five grounds, one deadline

CPLR 5015(a): the court that rendered the judgment or order "may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct," on any of five grounds:

1. Excusable default — "if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry";
2. Newly-discovered evidence which, if introduced at trial, would probably have produced a different result and couldn't have been discovered in time to move for a new trial under CPLR 4404;
3. Fraud, misrepresentation, or other misconduct of an adverse party;
4. Lack of jurisdiction to render the judgment or order;
5. Reversal, modification or vacatur of a prior judgment or order on which it is based.

Only ground 1 carries the one-year limit, and note precisely what starts it: service of a copy of the judgment with written notice of its entry upon the moving party. Not entry itself. A plaintiff who never serves notice of entry never starts the clock.

Grounds 2 through 5 have no period stated in the subdivision.

Ground 4 is the one that reaches bad service. A judgment entered without personal jurisdiction — including where service was never properly made — is attacked as a lack of jurisdiction, and CPLR 5015(a)(4) states no deadline for it.

What "excusable default" requires

CPLR 5015(a)(1) names the ground but doesn't define it. New York case law requires a movant under this ground to show both a reasonable excuse for the default and a potentially meritorious defense. That two-part standard comes from the case law rather than from the text of the statute, and this site publishes the statutes rather than the decisions interpreting them.

The distinction matters for choosing a route, because CPLR 5015(a)(4) — lack of jurisdiction — does not require an excuse at all. If the court never had jurisdiction, the reason the defendant didn't appear is beside the point.

CPLR 317 — served, but not in hand

CPLR 317 is a separate statute, and it is the one most often overlooked:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.

Four features distinguish it from CPLR 5015(a)(1).

No excuse required. The findings are that the defendant didn't personally receive notice of the summons in time to defend, and has a meritorious defense. There is no reasonable-excuse element.

A different clock. One year from obtaining knowledge of entry of the judgment — not from service of notice of entry — with a five-year outer limit from entry.

A threshold requirement. It applies only where service was made other than by personal delivery to the defendant or to an agent designated under Rule 318. A defendant handed the summons in hand under CPLR 308(1) cannot use it.

Restitution. If the defense succeeds, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal.

CPLR 317 does not apply to an action for divorce, annulment or partition.

Because CPLR 308(2) and 308(4) service — deliver-and-mail and affix-and-mail — are not personal delivery, a large share of defaulting defendants in ordinary money actions fall within CPLR 317's scope.

Two routes that don't need a motion at all

By stipulation. CPLR 5015(b): "The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys."

If the other side agrees, a signed stipulation filed with the clerk does it. No motion, no showing, no deadline in the subdivision.

On an administrative judge's application. CPLR 5015(c) allows an administrative judge, on a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law or other illegalities — or in cases where those defendants would be uniformly entitled to interpose a defense — to bring a proceeding to relieve the parties from those judgments.

That is a systemic remedy rather than an individual one, and it exists because of patterns found in high-volume consumer debt collection.

Choosing

The routes aren't exclusive, and a motion can be made in the alternative.

What the default judgment was based on

CPLR 3215(a) lets the clerk enter judgment where the claim is for a sum certain or a sum that can by computation be made certain, on application made within one year after the default, for the amount demanded in the complaint or stated in the CPLR 305(b) notice, plus costs and interest.

That one-year period is the plaintiff's deadline to take the default, not the defendant's deadline to undo it. The two are easy to conflate because both are a year.

Where the clerk cannot enter judgment, the plaintiff applies to the court, and CPLR 3215(b) allows the court to make an assessment, take an account or proof, or direct a reference.

Enforcement doesn't pause on its own

A motion to vacate does not automatically stay enforcement of the judgment. Restraining notices, income executions and bank restraints continue unless the court stays them. A stay is a separate request, and asking for it in the same motion is the ordinary practice.

Where these rules live

• CPLR 308 — Personal Service Upon a Natural Person
• CPLR 317 — Defense by Person to Whom Summons Not Personally Delivered
• CPLR 320 — Defendant's Appearance
• CPLR 3211 — Motion to Dismiss
• CPLR 3215 — Default Judgment
• CPLR 5015 — Relief from Judgment or Order

The New York courts publish self-help material at nycourts.gov. This page explains what the CPLR says. It isn't legal advice, and what counts as a reasonable excuse or a meritorious defense is decided under case law this site doesn't cover.