A motion to vacate a judgment in New York asks the court that entered the ruling to set it aside and reopen the case. You file it under CPLR 5015 or CPLR 317, identify a specific ground, support it with a sworn affidavit, and meet the deadline that applies to that ground. Done right, vacatur can stop wage garnishments, release a frozen bank account, and give you a chance to defend the case on its merits.
Pick the Ground That Fits Your Situation
You only need one ground, but your motion has to name it and prove it. CPLR 5015(a) gives you five options, and CPLR 317 adds a sixth path for defendants who never actually got the summons.
Excusable Default
Under CPLR 5015(a)(1), the court can vacate if you failed to respond to the lawsuit for a legitimate reason and you have a real defense. Both pieces are required. Serious illness, a family emergency, or incarceration can qualify as a reasonable excuse. Forgetting about the case, being too busy, or hoping it would go away does not. You don’t have to prove you’ll win at trial, but you do have to show the court there’s something worth litigating.
Newly Discovered Evidence
CPLR 5015(a)(2) covers evidence that surfaces after the judgment, probably would have changed the outcome at trial, and could not have been found earlier through reasonable effort.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order It has to be genuinely new. A document sitting in your own files that you never read won’t count. A witness who comes forward with information you had no way to discover might.
Fraud, Misrepresentation, or Misconduct
If the other side got the judgment through dishonest behavior, CPLR 5015(a)(3) lets the court throw it out. That includes fabricating evidence, hiding discovery documents, or lying about material facts.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order The misconduct has to have actually influenced the court’s decision. A minor inaccuracy that didn’t affect the outcome won’t be enough.
Lack of Jurisdiction
CPLR 5015(a)(4) applies when the court never had authority to enter the judgment, most often because you were never properly served. If the process server left papers at the wrong address, served someone who doesn’t live with you, or never served anyone at all, the court may have lacked personal jurisdiction. A judgment entered without jurisdiction is void, which makes this one of the strongest grounds available.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order
Reversal of an Underlying Judgment
CPLR 5015(a)(5) allows vacatur when a prior judgment or order the current one depends on has itself been reversed, modified, or vacated.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order It comes up less often, but it matters when your case was built on another ruling that has since collapsed.
CPLR 317 — Served, but Never Actually Notified
If you were served by a method other than personal hand-delivery and never actually received the summons in time to defend, CPLR 317 gives you a separate route. You have to show you didn’t personally receive notice in time to respond and that you have a meritorious defense.2New York State Senate. New York Civil Practice Law and Rules 317 – Defense After Default
This is useful when service was technically proper under the rules (so a jurisdiction challenge under 5015(a)(4) might not work) but the papers never actually reached you. “Nail and mail” service is the classic example: papers affixed to the door and mailed to the address. Legally valid, but if you had already moved you’d never know about the lawsuit until a creditor froze your account.
The Deadline Depends on the Ground
Miss the window and the motion is barred, so match your ground to its clock before anything else.
- Excusable default: Within one year after you were served with a copy of the judgment and written notice of its entry. If you were never served with notice of entry, the one-year clock hasn’t started.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order3NY CourtHelp. Vacating a Default Judgment
- Newly discovered evidence: No fixed deadline in the statute. File promptly after you discover the evidence, and only if it couldn’t have been found in time to move for a new trial under CPLR 4404. Courts look at whether you acted with reasonable diligence.1New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order
- Fraud or misconduct: No fixed deadline, but within a reasonable time. Courts look at when you discovered the fraud and how quickly you moved.
- Lack of jurisdiction: No statutory time limit. Waiting years still creates practical problems: evidence disappears, witnesses are gone, and a court may view delay unfavorably.3NY CourtHelp. Vacating a Default Judgment
- CPLR 317: Within one year of learning about the judgment, and no later than five years after it was entered.2New York State Senate. New York Civil Practice Law and Rules 317 – Defense After Default
What to File
Motions to vacate a default judgment in New York are most commonly brought by an Order to Show Cause rather than a standard Notice of Motion. The New York court system’s own guidance directs people seeking to vacate a default to use an Order to Show Cause, a document signed by the judge that orders the other side to appear and explain why the judgment shouldn’t be set aside.4New York State Unified Court System. Vacating a Default Judgment The practical advantage is that the judge can build in a temporary restraining order pausing enforcement while the motion is pending. A Notice of Motion cannot do that.
If you file by Notice of Motion, it has to specify the relief you’re requesting, the CPLR provision you rely on, the time and place of the hearing, and the supporting papers.5New York State Senate. New York Civil Practice Law and Rules R2214 – Motion Papers, Service, Time
The Affidavit Is the Heart of the Motion
Either way, you need a sworn affidavit laying out the facts. For an excusable default, explain exactly what prevented you from responding and describe the defense you would raise if the case reopened. For a jurisdiction challenge, focus on where you actually lived when service was attempted and why the process server’s affidavit is wrong.
Attach supporting documents as exhibits. Lease agreements, utility bills, or mail forwarding confirmations can show you didn’t live at the address where service allegedly happened. Medical records support an illness claim. Bank statements or correspondence can expose fraudulent conduct.
Affidavit of Service
After you serve the motion papers on the other side, you file an affidavit of service proving delivery. It must be sworn before a notary and state the date, time, and place of service, along with a physical description of the person served.6New York State Unified Court System. How to Serve Papers When Commencing an Action or Proceeding
Serving the Other Side
You have to deliver the motion papers to everyone in the case. If the opposing party has an attorney, service goes to the attorney, not the party directly.7New York State Senate. New York Civil Practice Law and Rules 2103 – Service of Papers
With a Notice of Motion, serve at least eight days before the hearing. If you want to require the other side to serve answering papers seven days before the hearing so you have time to reply, serve your motion sixteen days out and include that demand in the notice.5New York State Senate. New York Civil Practice Law and Rules R2214 – Motion Papers, Service, Time Service can be by personal delivery, mail, or electronic means where authorized and consented to. When you serve by mail, add five days to whatever notice period applies.7New York State Senate. New York Civil Practice Law and Rules 2103 – Service of Papers
With an Order to Show Cause, the judge sets the hearing date and specifies how and when to serve. Follow those instructions exactly. They override the standard rules.
Stop Enforcement While the Motion Is Pending
Filing the motion by itself does not stop the other side from enforcing the judgment. Wage garnishments continue, bank accounts can be restrained, and liens stay in place. This is the main reason to use an Order to Show Cause: the signing judge can include language temporarily staying enforcement until the motion is decided.
If you file by Notice of Motion and need enforcement halted, you have to make a separate application for a stay. Either way, speed matters. Once a bank levy hits, getting the money back is a separate fight even if you eventually win vacatur.
The Hearing
The court will schedule oral argument. You carry the burden of showing your motion meets the legal standard for the ground you chose. The judge considers whether you filed on time, whether your evidence supports the ground, and whether vacatur would unfairly prejudice the other side.
The opposing party will typically argue that service was proper, your excuse is thin, or you don’t have a real defense. Be ready to explain gaps in your timeline, why you didn’t respond sooner, and exactly what defense you would raise if the case reopened. Judges may ask pointed questions and sometimes request additional documentation before ruling.
This is where paperwork quality decides the outcome. A well-supported affidavit with clear exhibits does most of the work. Vague assertions about not receiving papers, without something like a lease showing a different address, rarely persuade a judge.
If You Win, If You Lose
If the court grants the motion, the judgment is vacated and the case returns to where it was before the default. You’ll typically be ordered to answer the complaint within a set number of days, often 30. If service was improper, the plaintiff may need to re-serve you before the case can move forward. The lawsuit isn’t over. It’s starting again, and you have to defend it.
If the motion is denied, the judgment stands and enforcement continues. You can appeal, though appeals focus on whether the trial court made a legal error rather than re-arguing the facts. If circumstances change or new information surfaces, you can also file another motion on different grounds than the first.
Fix Your Credit Report After Vacatur
A court order vacating the judgment doesn’t automatically clear your credit report. File a dispute with each credit bureau reporting the judgment and attach a copy of the vacatur order. Under the Fair Credit Reporting Act, the bureau must investigate and resolve your dispute within 30 days of receiving it, extended to 45 days if you provide additional documentation during that window.8Office of the Law Revision Counsel. 15 USC 1681i – Procedure in Case of Disputed Accuracy If the bureau can’t verify the disputed entry within that period, it must delete or correct it. Send the dispute by certified mail with return receipt so you have proof of when it arrived.
Active-Duty Servicemembers Have a Separate Federal Path
If a default judgment was entered against a servicemember during military service or within 60 days after discharge, the federal Servicemembers Civil Relief Act requires the court to reopen the judgment on application if military duties materially affected the servicemember’s ability to defend and they have a meritorious defense. The application has to be filed within 90 days after military service ends. Before entering any default judgment, the plaintiff must also file an affidavit stating whether the defendant is in military service, and if so, the court must appoint an attorney to represent the servicemember before judgment.9Office of the Law Revision Counsel. 50 U.S. Code 3931 – Protection of Servicemembers Against Default Judgments These federal protections sit on top of anything available under New York’s CPLR.