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Motion to Vacate a Default Judgement is Scheduled: DO I Need a Traverse Too?


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I have an old judgement against me. In NY, the process server did "nail and mail". I am not sure if the statute dictates that he must mail the summons certified mail, but his affidavit of service indicates that he mailed it certified mail, and he attached a copy of the mailing receipt along with a certified mail article number. HEre is the thing: He never took it to the PO to have the receipt validated or stamped, plus when you track that article number it cimes up invalid. I went to the Post Office in my town and was told that this item was never mailed certified mail. SO HE LIED! and attached a fake receipt.

As I said, perhaps certified mail is not required, I am not sure.

I filed as order to show cause why it shouldnt be vacated for lack of jurisdiction. I have a return date coming up.

Can the judge just vacate it at the return date?

What can I expect at this return date?

Will a Traverse hearing be needed? It seems kind of silly to go through a traverse hearing. My arguments are laid out in my affidavit.

and there is no rebutting the fact that it wasnt mailed certified mail, since its all there in black and white. Will this be a lengthy hearing next week?

HELP!

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I'd do both to be sure...make sure to print the info from the USPS site...then look at suing the process server for fraud.

YEs I attached a copy of the printout from the USPS to the Affidavit. If they are smart, they will simply not oppose my motion to vacate and let it go, and then they could always sue me all over again.

Im no lawyer, BUT I dont see how they could win this, with that big nono that the process server did

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Well you file your own lawsuit against the process server. Nothing fancy - just small claims for costs, etc. If NY requires licensing, then they may require a bond- meaning the bonding company will pay up.

Also, if there is a registry, then file a complaint - he/she could lose their license for what they have done.

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Well you file your own lawsuit against the process server. Nothing fancy - just small claims for costs, etc. If NY requires licensing, then they may require a bond- meaning the bonding company will pay up.

Also, if there is a registry, then file a complaint - he/she could lose their license for what they have done.

I know, thats what I SHOULD do....but I dont want to get anyone in trouble, I just want my judgement vacated

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I know, thats what I SHOULD do....but I dont want to get anyone in trouble, I just want my judgement vacated

People who work in one capacity or another in the legal system should be aware that their actions can have profound effects on other people's lives. They should do a proper job.

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Guest usctrojanalum
If you prove the service was faulty, the judgment is moot - meaning it goes away because of bad service.

Does not work like this in NY.

OP, you will most likely have the other side consent to having the judgment vacated. However, in NY the judgement will be lifted and you will be ordered to serve and file an answer within 30 days without jurisdictional defenses. It's a very pro-plaintiff procedure but unfortunately that's how it is.

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Does not work like this in NY.

OP, you will most likely have the other side consent to having the judgment vacated. However, in NY the judgement will be lifted and you will be ordered to serve and file an answer within 30 days without jurisdictional defenses. It's a very pro-plaintiff procedure but unfortunately that's how it is.

So you think that since the Process Server screwed up they will more then likely just consent to vacating the judgmement?

why will I have to file an answer? dont they have to reserve me, and dont we get to go through discovery etc? they was originally tied to an eviction proceeding. and it was done in a local village court. The amount of the judgement is 6000.00 and that would excede small claims so I would think they need to go to state supreme court. Please correct me if im wrong

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Guest usctrojanalum

No, they won't have to reserve you. That's what I am talking about. It is a very pro plaintiff policy where the Court will lift the judgment and put the case on the trial calendar.

The theory is not punishing the plaintiff by making them pay double filing fees if their third party process server does not serve a summons correctly.

And Supreme Court is generally for cases that exceed 15,000 or 25,000 depending on where you live. (but all types of cases can be filed there)

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No, they won't have to reserve you. That's what I am talking about. It is a very pro plaintiff policy where the Court will lift the judgment and put the case on the trial calendar.

The theory is not punishing the plaintiff by making them pay double filing fees if their third party process server does not serve a summons correctly.

And Supreme Court is generally for cases that exceed 15,000 or 25,000 depending on where you live. (but all types of cases can be filed there)

Are you sure about this? Remember, this is a case of LACK OF JURISDICTION not excusable default. I know with excusable default the case would be put back on the calender because service is not being challenged. With Lack of Jurisdiction, one is challenging service and therefor the court has no jurisdiction. I was told those cases(much more difficult to prove) would cause the whole thing to be dismissed and would have to be refiled.

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Guest usctrojanalum

Yes, 100% positive. I'm in Court 4 times a week and see this daily. The actual short form order that the judge will sign vacating the judgment are already pre-printed and have the language on them already that the defendant is to file and serve an answer within 30 days.

Plus to vacate a judgment in NY, the law actually says that you need excusable default (lack of jurisdiction) AND a meritorious defense. But that is not really ever followed. So as a compromise to both parties, the Court will vacate the judgment and the matter will be set down on the trial calendar for it to be heard on it's merits.

If you are in the City of NY - it is done like this 99% of the time no questions asked. If you are in a district court, same thing it is always done this way. If you are being sued in a City Court (these are in Westchester County and upstate NY) I'm not as sure, but I'd assume it'd be a similar practice since we're supposed to have a Unified Court System in NY.

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Yes, 100% positive. I'm in Court 4 times a week and see this daily. The actual short form order that the judge will sign vacating the judgment are already pre-printed and have the language on them already that the defendant is to file and serve an answer within 30 days.

Plus to vacate a judgment in NY, the law actually says that you need excusable default (lack of jurisdiction) AND a meritorious defense. But that is not really ever followed. So as a compromise to both parties, the Court will vacate the judgment and the matter will be set down on the trial calendar for it to be heard on it's merits.

No you are incorrect about a meritorious defense. In a case regarding lack of jurisdiction, no meritorious defense is needed:

"when motion to vacate is based on a failure of service, leading to a lack of personal jurisdiction, the issue of a meritorious defense is not material-the default will be unconditionally vacated in the absence of jurisdiction (see DeMartino v rivera, 148 A.D. 2d 568, 539, N.Y.S. 2d 38 (2nd Dept. 1983); McMullen v Arnone, 79 A.D.2d 496, 437 N.Y.S 2d 373).

Whether a respondent receives actual notice of the action is irrelevant, since "since moving received by means other then those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court" Feinstein v Bergner, 48 N.Y.2nd 234, 241 (1979) see also Palumbo v Estate of Clark, 94 Misc 2d 1 (1978) (A process servers failure to comply with the requirements of section 735 of the RPAPL is fatal to jurisdiction even in the extreme case where a tenant admits receipt of the notice of petition and petition)

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Guest usctrojanalum

What the law says, and what actually happens in a Court room are two very very very different things. You will see at your hearing, I promise to you the way I describe it is the way it is done. Do you have any actual defenses to the lawsuit? are you worried about it being placed on the trial calendar? I can promise you it will not be dismissed on your hearing date.

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What the law says, and what actually happens in a Court room are two very very very different things. You will see at your hearing, I promise to you the way I describe it is the way it is done. Do you have any actual defenses to the lawsuit? are you worried about it being placed on the trial calendar? I can promise you it will not be dismissed on your hearing date.

That is very troublesome. IF the judge does not follow the law as outlines in the CPPLT and RAPPL, then I will appeal any adverse decisions.

I do have a defense.

I dont expect it dismissed at the first hearing, I expect it dismissed at the subsequent Traverse hearing.

If the plaintiff does the right thing, they will consent to the judgement being vacated at the preliminary hearing. There is clearly a lack of jurisdiction

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LACK OF JURISDICTION means that you were not served legally, therefor the court does not have jurisdiction over you.

A traverse hearing is a hearing that is conducted to determine jurisdiction.

The numerous court cases you have seen are not concerning lack of jurisdiction, but rather "excusable default"- those cases do not require a traverse hearing, and those cases are the ones that are just "restored" back to the calandar...............

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