Practice point: When a defendant seeking to vacate a default judgment raises both a
jurisdictional objection, pursuant to CPLR 5015(a)(4), and, alternatively,
seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining
whether it is appropriate to grant a discretionary vacatur. Here, the process server's affidavit constituted
prima facie evidence of proper service, pursuant to CPLR 308(4) . In her affidavit in support of her motion, the defendant
did not deny that she was served with process and did not swear to
specific facts to rebut the process server's affidavit.
The defendant was not entitled to relief pursuant to
CPLR 5015(a)(1), as she failed to set forth any reasonable excuse for
her default, since the only excuse proffered was that she had no
recollection of being served with process.
Student note: As to the jurisdictional question, since the defendant did not rebut the process server's affidavit, a hearing was not necessary. As to the discretionary vacatur, in the absence of a reasonable excuse, it is unnecessary to determine
whether the defendant demonstrated a potentially
meritorious defense.
Case: Servpro Indus., Inc. v. Anghel, NY Slip Op 06572 (2d Dept. 2014)
Here is the decision.
Tuesday's issue: Lien law, unjust enrichment, and quantum meruit.
