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. If the defense is successful, 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. This section does not apply to an action for divorce, annulment or partition.
§ 317.Defense by person to whom summons not personally delivered.
Article 3. Jurisdiction and Service, Appearance and Choice of Court · Last amended 1964 · Last verified July 21, 2026
In one sentenceCPLR 317 lets a defendant who never received actual notice of a lawsuit before default, because the summons wasn't personally delivered to them or their agent, move to defend within one year of learning of the judgment (never more than five years after entry) if they show a meritorious defense.
Full Text of CPLR 317
Plain-English Summary
CPLR 317 gives a limited second chance to a defendant who defaulted without ever learning about the case. It applies only when the summons was served on the defendant by some method other than personal delivery to the defendant or to an agent designated for service under rule 318 -- substituted service, service by publication, or service outside the state, for example.
Such a defendant, if they never appeared, can move to defend the action within one year after learning that a judgment was entered against them, though the outer limit is five years after entry no matter when they found out. To win that motion, the defendant must convince the court of two things: that they didn't personally receive notice of the summons in time to defend, and that they have a meritorious defense to the claim.
If the defendant succeeds on the motion and later wins the case, the court can order restitution of whatever the plaintiff collected under the default judgment, following the same rules that apply when an appellate court reverses or modifies a judgment. The section carves out one exception: it doesn't apply to divorce, annulment, or partition actions.
Frequently Asked Questions
Can I fight a default judgment if I never knew about the lawsuit?
Yes, if you weren't personally served and can show you didn't receive notice in time to defend and have a meritorious defense, CPLR 317 lets you move to defend the case despite the default.
How long do I have to bring a CPLR 317 motion?
One year after you learn a judgment was entered against you, but never more than five years after the judgment's entry.
Does CPLR 317 apply if I was personally handed the summons?
No. It applies only when the summons was served by some other method, such as substituted service or service outside the state.
What must I prove to win a motion under this section?
That you didn't personally receive notice of the summons in time to defend, and that you have a meritorious defense to the plaintiff's claim.
Can I use CPLR 317 to reopen a divorce judgment?
No. The section excludes divorce, annulment, and partition actions.
What happens if I win after being let back into the case?
The court can order restitution of anything collected under the default judgment, using the same procedure that applies when a judgment is reversed or modified on appeal.
Advisory Committee Notes
(See also Advisory Committee notes preceding § 301, under subheading “Special appearance abolished; procedure for raising jurisdictional defects.”).
Actions for divorce, partition and an action “expressly prescribed by law” were excluded from CPA § 217. 3 Carmody-Wait, Cyclopedia of New York Practice 276 (1953). The phrase “expressly prescribed by law” is redundant since, throughout this act, such a specific provision prevails over a more general one. Both under present and former law the courts retain their inherent “discretionary power” to permit a judgment to be set aside in any case, including one involving divorce or partition. See Brown v Brown, 58 NY 609, 611 (1874). Action for annulment added to last sentence, since the same considerations apply to annulment as to divorce; thus, a new marital status might have been acquired by a party since the annulment.
This section is derived from CPA § 217. The requirement that the court find the person seeking to defend was not personally given notice of the summons in time to defend is new. Personal delivery of the summons to the person to be served is encouraged by this section. It is the method of service best calculated to give actual notice.
Amendment History
Add, L 1962, ch 308, § 1; amd, L 1964, ch 388, § 2, eff Sept 1, 1964.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: vacate default judgment New York not personally servedNew York motion to defend after defaultCPLR one year to vacate judgmentreopen default judgment New York substituted service