Employment Law

Employment Law Questions? Ask an Employment Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Employment Law

Defendant failed to respond to summons and complaint but

Customer Question
later files motion to vacate...
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: 2 years ago.Category: Employment Law
Show More
Show Less
Ask Your Own Employment Law Question
Answered in 5 hours by:
5/12/2015
Employment Lawyer: Ray, Employment lawyer replied 2 years ago
Ray
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 43,501
Experience: 30 years in Employment law
Verified
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
Ask Your Own Employment Law Question
Employment Lawyer: Ray, Employment lawyer replied 2 years 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.
Ask Your Own Employment Law Question
Customer reply replied 2 years 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 reply replied 2 years 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?
Employment Lawyer: Ray, Employment lawyer replied 2 years 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.
Ask Your Own Employment Law Question
Customer reply replied 2 years 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?
Employment Lawyer: Ray, Employment lawyer replied 2 years 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.
Ask Your Own Employment Law Question
Customer reply replied 2 years 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?
Employment Lawyer: Ray, Employment lawyer replied 2 years 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.
Ask Your Own Employment Law Question
Ask Ray Your Own Question
Ray
Ray
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 43,501
43,501 Satisfied Customers
Experience: 30 years in Employment law

Ray is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,184 satisfied customers

JD, BBA, recognized by ABA for excellence.

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

12,480 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

12,264 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

11,887 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

3,773 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

< Previous | Next >

Related Employment Law Questions
Had an employee make false allegations against me. I am a
Had an employee make false allegations against me. I am a superivo … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,088 satisfied customers
I am seeking for an employment lawyer. My offer letter says
My offer letter says it is “at will” but it is a permanent role. … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,088 satisfied customers
I hired a manager almost 3 months ago. About 2 weeks ago she
I hired a manager almost 3 months ago.About 2 weeks ago she called out sick and told me that she is overburdened by the manager position and has stress related anxiety and pain.While she was on medica… read more
socrateaser
socrateaser
1,031 satisfied customers
Can a employer require a prescription receipt if an employee
Can a employer require a prescription receipt if an employee goes to the doctor. My employer will not excuse the absence if they do not receive a receipt of a prescription. Is this legal? … read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers
My husband had an auto accident on 6/30/17 driving a van
My husband had an auto accident on 6/30/17 driving a van while working for his employer. Just today he got a letter stating he is beiNg terminATEd because he has not been relase to return to work yet.… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,959 satisfied customers
My former employer has made no effort to allow me to
my former employer has made no effort to allow me to rollover my retirement money, what legal recourse do I have to get the money from them? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
11,887 satisfied customers
I am being accused of violence of the workplace that happen
i am being accused of violence of the workplace that happen in 2012 and a letter came anonymously in 2017. Am my job are giving me 3 days off is there a statue of limitations … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I was discrimamated i believe i was in maintnancebecause i
i was discrimamated i believe i was in maintnancebecause i was a woman and knew my joband people within the production area knew it we had a temparary maintnance headthat told me i colldn't do anythin… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I am in MA. recently lost background check certificate which
I am in MA. recently lost background check certificate which allowed me to work in transportation industry. need help getting off probation … read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers
I have a relocation agreement with my current employer and
I have a relocation agreement with my current employer and if I terminate my employment I'm subject to repayment percentage based on my months of service up to 24 months. If I terminate my employment … read more
socrateaser
socrateaser
1,031 satisfied customers
Fmla eligibility. I am unable to return to work after
yes. I am unable to return to work after providing a doctors note that released me. My HR is telling me that it is an unexcused absence because the note did not have the dates that I was out of work written on the note. … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,088 satisfied customers
I filed a discrimination compliant against my employer. The
I filed a discrimination compliant against my employer. The case is before Miami EEOC judge; since July. No hearing has been set up. How long does it take to get a hearing in Miami? … read more
Alex Esquire
Alex Esquire
Managing Attorney
Doctoral Degree
153 satisfied customers
Can my supervisor reduce my pay i only work 24 hrs.a week
can my supervisor reduce my pay i only work 24 hrs.a week and bring home $355.00 every other week i cannot make ends meet. … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I have been abused by the school district I work in for the
I have been abused by the school district I work in for the last 30 years. Because of our weak union I have had to endure sexual harassment, discrimination due to sexual orientation and blatant bullyi… read more
P. Simmons
P. Simmons
Attorney
Doctoral Degree
34,926 satisfied customers
I(Black female) was employed by a corporation that I left
I(Black female) was employed by a corporation that I left because of unfair treatment. I was recommended for a supervisor position by my manager (previous Supervisor retired). Corporate decided not to… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,088 satisfied customers
I work full time. I am 68 years and have had Medicare and
I work full time. I am 68 years young and have had Medicare and Tricare since I turned 65. My company pays me Health and welfare. I was covered by Medicare and Tricare for life. I would like to know i… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Is it legal legal an employer to put un employee under a
Is it legal legal an employer to put un employee under a cervelance camera with out the consent of the employee … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
My husband is from Ireland and is a lawful permanent
My husband is from Ireland and is a lawful permanent conditional resident. He was working for a company until Nov 6th and was suddenly fired without warning.. citing a "misconduct" charge.. setting so… read more
Marsha411JD
Marsha411JD
Lawyer
Doctoral Degree
12,264 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x