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Zachary
Zachary, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have a few procedural questions about a commercial case in

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I have a few procedural questions about a commercial case in NY Civil Court. I filed a late Answer because I did not receive the Summons and Complaint in a timely manner, even though the Plaintiff alleges personal service. (The Answer was 23 days late.) Now, since the 20 days have expired, I have received a letter from the Plaintiff's attorney rejecting the Answer and stating that a default judgment has been submitted to the Clerk. Although I do not believe that a Default Judgment will be granted, what would be the best way for me to respond at this time?
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.

Hi,

Thank you for your question.

You need to check with the court and look for the Plaintiff's "Motion for Default Judgment". Once you get a copy of it, you need to then file a "Defendant's Response to Plaintiff's Motion for Summary Judgment".

In that document, you need to state why you filed the answer late and then attach an affidavit to the motion which swears as to the personal service being done in a later manner.

File this with the court ASAP, and then contact the clerk and make sure to ask to be notified of a hearing date. Attend the hearing and argue your response.

I agree that the court is highly unlikely to grant the default judgment where you have filed an answer, but you want to cover all your bases.

Please let me know if there is any other question I can answer for you on this issues.

Best Regards,

ZDN

Customer: replied 1 year ago.

Thank you so much for your response. I have a few follow-up questions.


 


Can you please clarify whether a Motion for Default Judgment is different from an Application for Entry of Default Judgment? The reason I ask is because I do not believe that the actual Motion has been filed. If the Application, rather than the Motion, has been filed do I have a certain amount of time to re-submit the Answer, thereby avoiding a formal response?


 


Can you also please clarify what you mean by the "Summary Judgment" component? Would I be filing the "Defendant's Response to Plaintiff's Motion for Summary Judgment" or the "Defendant's Response to Plaintiff's Motion for Default Judgment?"


 


Thank you very much.

Expert:  Zachary replied 1 year ago.

Thank you for your response.

The application for default judgment is the same thing as the motion for default judgment.

In regard to the summary judgment language, I apologize, that is a typo. I meant to say default judgment. So you will file a Response to Plaintiff's Application for Default Judgment

I want to make sure that I understand you correctly. You are saying "submit the answer". You've filed the Answer with the court and then served the Answer on the Plaintiff, correct?

If you've done this, then you do not need to refile the Answer at this time. You only need to file the Response mentioned above, along with the affidavit I spoke about earlier.

Zachary, Attorney
Category: Legal
Satisfied Customers: 4011
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Many thanks for your response and clarification.


 


Yes, I filed the Answer directly with the NY Civil Court, and also mailed a copy of the Answer to the Plaintiff's attorney.


 


 


 


 

Expert:  Zachary replied 1 year ago.

Good. You are good to go and only need to file the Response. Unfortunately, there are not really any forms to follow on this type of Response. However, the court understands that you are pro se and will read your document accordingly.

Good Luck,

ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 4011
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hello again. I hope that this message finds you well.


 


I would like to ask you some follow-up questions related to my recent thread. I spoke with an attorney friend who reviewed the letter I received from the P's attorney. He believes that the P may have filed papers, not a Motion, directly to the Clerk requesting a default judgment, I believe based on the payment of a sum certain. (This is a breach of contract case so I don't believe that a sum certain applies but alas.) Since the letter does not specify that a Motion was filed, he recommended that I file a "Motion to Stay the Issuance of a Default Judgment; or, alternatively, Motion to Vacate Default Judgment." However, this seems odd to me because I would be responding to papers (not a Motion) that I have not received and that do not exist in the case file.


 


1. Would the kind of Motion described above be the correct one to file in this situation, or should I wait until I actually view the papers the P submitted (if any)?


2. If that kind of Motion is not appropriate, should I file a "Reponse to Plaintiff's Request for Default Judgment"?


3. If I should file the Motion, that packet would contain the following: Notice of Motion (with a proposed court date?), Affidavit in Support of Motion, Affidavit of Service, and any related Exhibits (like the P's letter which is the only indication I have that any papers related to a default judgment were sent to the Clerk), correct?


4. What happens if I do not respond for the time being, especially if I am not able to view the P's non-Motion papers?


 


I really appreciate your help.


 

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