New York Motion to Vacate Judgment, Quash Subpoena Duces Tecum, Dismiss Writ of Garnishment, and for Leave to File an Answer to Complaint

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In deciding whether to set aside a default judgment, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to defend on the merits. Therefore, in addition to the requirement that defendant show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:


" the nature and extent of the prejudice which may be suffered by the non-defaulting party if the default is set aside;

" the presence of material issues of fact;

" the presence of a meritorious defense to the claim;

" the significance of the interests at stake, including, but not limited to, the amount of money involved;

" whether the failure to answer was intentional or willful or the result of conscious indifference;

" whether party or counsel bears responsibility for default; and

" the availability of less drastic sanctions.

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FAQ

CPLR 3211(a)(7) provides: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . . the pleading fails to state a cause of action . .. ." . . . either party may submit any evidence that could properly be considered on a motion for summary judgment ....

An application to vacate a default judgment is made by a procedure known as an ?order to show cause.? The order to show cause must contain the legal grounds upon which the defendant seeks to vacate the judgment and an affidavit (sworn statement) from the defendant that provides the necessary facts to support the ...

Specifically, pursuant to Uniform Rule 202.7 (f), upon an application for an order to show cause that seeks a temporary restraining order, the application must contain an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice.

New York courts usually only vacate default judgments in two situations: Excusable default: The defendant has a good excuse for not appearing and has a valid defense to the lawsuit. Lack of personal jurisdiction (bad service): The defendant wasn't properly served with the required notice of the lawsuit.

A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. An appellate court may also vacate its own decisions.

The default judgment usually gives the plaintiff the right to collect the amount of money that was asked for in the complaint, plus interest and court costs. The judgment will appear on the defendant's credit report, and it can be there for up to seven years if it is not paid.

Removing A Judgment from Your Record There are only three ways in which a judgment can be made to go away: paying the debt, vacating the judgment or discharging the debt through bankruptcy.

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New York Motion to Vacate Judgment, Quash Subpoena Duces Tecum, Dismiss Writ of Garnishment, and for Leave to File an Answer to Complaint