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Ray
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 36939
Experience:  30 years in Employment law
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Defendant failed to respond to summons and complaint but

Customer Question

Defendant failed to respond to summons and complaint but later files motion to vacate default judgment. In opposition papers to the motion to vacate default judgment, plaintiff alleges that since the default by the defendant, the plaintiff suffered a fire
that destroyed important evidences, and granting a vacate of default judgment would prejudice plaintiff who had lost important evidences for the case in the fire. Assuming the summons and complaint were properly served to defendant, can plaintiff successfully
oppose the motion to vacate default judgment? However, if default judgment gets vacated, what types of adverse effect would plaintiff suffer after admitting to losing important evidences for the case in a fire?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ray replied 1 year ago.
Hi and welcome to JA. I am Ray and will be the expert helping you today.
I do not see that the defendant here has set out good cause to overturn the default judgment. Their motion may not constitute good cause for failure to timely respond.They are the ones that failed to answer.
Remember they have to claim something here to even have a chance, I don't see a court granting this.At worst if it is reopened then you present your case and you may prevail again.
If the case is reopened all you can do then is present what you have here in form of evidence and testimony.If items were destroyed you put on what you can muster here.You are not prejudiced by an accidental fire, it was not something done intentionally.
I think you respond here and the court may agree with you on this basis.You certainly want to respond here arguing they did not respond timely and don't have a meritorious defense.It is critical to try to get the motion overruled here since you have a loss of evidence.
I know it is after the fact but what should have been done was you put on a prima facie case while you are there with exhibits and testify, this would have made a record for later and made it harder for them to prevail.Again you need to ask for oral argument here on the motion so you can try to convince the judge that they were not diligent and do not have a meritorious defense.
Law for reference.
Vacating A Default Judgment Under CPLR §317
A default judgment can be vacated when a defendant has a meritorious defense and did not receive actual notice of the action in time to defend. Under CPLR §317, four requirements must be met to have a default opened:
service must have been made in a manner other than personal delivery or delivery to an agent .designated under CPLR §318;
the defendant must show that he or she did not receive actual notice of the process in time to defend the action;
the showing of a meritorious defense; and
the making of a motion under CPLR §317 must be made within one year of knowledge of entry of the default judgment with an outside time limit of five years from such entry.
Remember they have burden to prove all of this up.You can respond here and challenge this.
I appreciate the chance to help you .Please let me know if you have more follow up.Thanks again
Expert:  Ray replied 1 year ago.
I want you to know what you are up against.NY case law is in favor of vacating the hearing and reopening it.Here are those cases..
http://www.avvo.com/legal-guides/ugc/vacating-a-default-judgment-under-new-york-law
All you can do is try to get the motion overruled here on the basis of no good reason not to reply and no meritorious defense.
Thanks again for letting me help you.
Customer: replied 1 year ago.
Assuming the defendant did not default, discovery would have been had and evidences presented before the plaintiff suffered fire and lost evidences. Therefore, plaintiff would suffer prejudice from the default if vacated. (How long does it usually take for evidences to be submitted after filing court case?
Customer: replied 1 year ago.
I heard from someone that it was wrong for plaintiff to have made the defendant aware that they lost important evidences from the fire because if the defendant's motion to vacate default judgment were granted then the defendant could use that against the plaintiff. I don't understand in what way(s) that could be done by defendant. From your experience sir, could you hypothesize?
Expert:  Ray replied 1 year ago.
Well your loss of evidence in your motion could be seen as a meritorious defense since if the hearing is granted you are admitting you don't have the proof to support the case.But you have already filed here so not much you can do at this point.If they reinstate here you certainly then can conduct discovery here if the other side has documents you need.
If this is reinstated then you can regular motion for production of documents to see what they have here that you don't.You might also want to contact the lawyer for the other side to see if settlement is possible and negotiate since there is uncertainty on both sides--whether the court grants their request or that you can prove your case if you have to.Sometimes there is logic in settling in these situations prior to ruling on motion.
See what they offer here to resolve it now.I think it might be in your interests to see what they offer and consider it .
Thanks again for the chance to help.
Customer: replied 1 year ago.
Thanks for responding again. And I think I get your logic here that loss of evidence by plaintiff can be used as an advantage by defendant to even ask for dismissal of the case on the theory that the plaintiff wouldn't be able to prove the case, or just used as a meritious defense by the defaulting party? However, I believe the CPLR also states that motion to vacate default judgment shouldn't be granted if the opposing party would suffer prejudice. Could loss of document during the period of default rise to the level of prejudice in the CPLR?
Expert:  Ray replied 1 year ago.
Yes it can be argued that they have meritorious defense.You can argue here that you would be prejudiced if the motion were granted and see if the court agrees.
Thanks again.
Customer: replied 1 year ago.
What could have been your strategy if dealing with this type of situation? Would it have been best to have avoided making the defendant aware of the loss of evidence or if you had filed the opposition papers would you have been ambigious to the number of documents lost?
Expert:  Ray replied 1 year ago.
Yes I would not have raised the loss of evidence.That really doesn't help you at all.You are better off claiming that they had no good cause here to get a new hearing and no meritorious defense.You might still prevail with that argument.
Thanks again.