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Third Department Gives No Break to Pro Se Litigant Attempting to Vacate a Default Judgment

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  • Posted on: Sep 25 2020

After being served with a summons and complaint in a lawsuit, a defendant generally appears and serves an answer or makes a motion seeking to dismiss some or all of the complaint.  Defendant’s formal appearance in an action is governed by CPLR 320.  This Blog has addressed formal and informal appearances [HERE].

If a defendant fails to appear in an action, among other things, a plaintiff can seek from the Court, a default judgment pursuant to CPLR 3215.  If plaintiff’s claim is “for a sum certain or for a sum which can by computation be made certain,” a plaintiff can seek a default judgment from the Clerk of the Court if the application is made within 1 year of the default.  See CPLR 3215(a).  This BLOG has addressed issues surrounding a plaintiff’s failure to seek a default judgment within 1 year of default (CPLR 3215(c) [HERE].

In the event that a plaintiff obtains a default judgment, there are several methods that may be employed by a defendant to vacate same.  This BLOG has previously addressed some of those methods.  [HERE].  Pursuant to CPLR 5015(a)(1), a defendant can move “the court which rendered a judgment or order [to] 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” due to, among other things, “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….”

In seeking the vacatur of a default entered pursuant to CPLR 5015, a two-prong test must be satisfied requiring a defendant to “demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action.”  Global Liberty Ins. Co. v. Shahid Mian, M.D., P.C., 172 A.D.3d 1332 (2nd Dep’t 2019) (citations omitted).

While some might expect leniency from a court when a default judgment for failure to appear is entered against an unrepresented defendant, such was not the case in Kelly v. Hinkley, decided by the Appellate Division, Third Department, on September 24, 2020.  The plaintiff landlord and defendant tenant in Kelley were parties to a lease agreement.  Plaintiff commenced an action, and served defendant with a summons and complaint, after defendant stopped paying the monthly rent.  Defendant was served on June 22, 2018 and his answer was due on July 10, 2018.  On July 9, 2018, plaintiff’s counsel received a call from an attorney that claimed that he “had recently been retained by defendant.”  Counsel then stipulated to extend until July 19, 2018, defendant’s time to answer the complaint.  On July 19, however, a different attorney “who was anticipating being retained” contacted plaintiff’s counsel and requested a further extension.  Plaintiff’s counsel refused the request for an additional extension.  Ultimately, defendant never retained an attorney.  On July 23, four days later, a letter was sent to defendant advising that he was in default and that any answer that he filed would be rejected as untimely.  Defendant filed an answer with the Delaware County Clerk on August 1, 2018, but neglected to serve a copy on plaintiff. 

On September 26, 2018, the Kelley plaintiff moved for a default judgment, on notice.  Defendant failed to oppose the motion, which was granted on November 5, 2018.  Defendant’s pro se motion to vacate the judgment pursuant to CPLR 5015(a)(1), made on January 22, 2019, was denied.  On appeal, the Third Department found that “Supreme Court did not abuse its discretion in denying defendant’s motion to vacate the default judgment.”  After noting the two prong analysis previously discussed herein, the Kelley Court recognized that “[a] motion to vacate a prior judgment or order is addressed to the court’s sound discretion, subject to reversal only where there has been a clear abuse of that discretion.”  (Citations and internal quotation marks omitted.)  

Citing numerous cases, the court rejected defendant’s argument that the default should be vacated due to his pro se status and his difficulty retaining counsel, finding that “Supreme Court did not abuse its discretion in concluding that defendant’s purported inability to secure counsel and his unawareness of the procedural requirements due to his pro se status do not constitute reasonable excuses for his default.”

The Court was not moved by the underlying facts either and stated:

The record reveals that defendant was personally served with a summons and complaint on June 22, 2018 and that the summons explained that defendant must serve a copy of his answer on plaintiffs’ attorney within 20 days. Defendant consulted with two separate attorneys, one of whom obtained an extension of time, but defendant failed to timely file or serve an answer. Defendant filed an answer a week after a letter from plaintiffs’ counsel advised him that he was in default, that plaintiffs would not accept service of an answer and that any answer would be rejected as untimely. Defendant never served that answer, nor did he respond to plaintiffs’ motion for a default judgment. Further, he waited 2½ months before moving to vacate the default judgment.

Because the Court found that there was no reasonable excuse for defendant’s default, there was no need to determine whether defendant “demonstrated the existence of a potentially meritorious defense.”  (Citations and internal quotation marks omitted.)


Pro se litigants should not count on leniency from the court due to their lack of knowledge.  

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