Meritorious Defense Not Needed? The First Department's Split on Pre-Judgment Default Relief

Key Takeaways

• In Naber Electric v Triton, the First Department held that an affidavit of merit is “not essential” when a defendant seeks relief before entry of a default order or judgment — even where the affidavit supplied lacked any detail.
• The other Departments, and the Second Circuit construing Rule 55 after a clerk’s entry of default, require a meritorious defense showing.
• The split creates forum-driven outcomes in default practice and invites Court of Appeals resolution.
• A plaintiff-side workaround exists: enter an ex parte judgment on liability where available, though downstate courts resist it outside sum-certain cases.

First Department Creates Department Split on Default Judgment Requirements

The landscape of default judgment law in New York has become increasingly complex, with different appellate departments taking conflicting approaches to fundamental procedural requirements. A First Department decision highlights a significant disagreement among New York’s appellate courts regarding whether defendants must demonstrate a meritorious defense when seeking to vacate default judgments.

This procedural question has far-reaching implications for both plaintiffs and defendants in commercial litigation. While some courts require detailed affidavits showing potential defenses, others take a more lenient approach that focuses on different factors entirely. The variation in requirements can significantly impact litigation strategy and case outcomes, particularly in construction and contract disputes where defaults are frequently sought.

The Decision

Jason Tenenbaum’s Analysis:

Naber Elec. v Triton Structural Concrete, Inc., 2018 NY Slip Op 02562 (1st Dept. 2018)

“Although the affidavit of merit provided by defendants’ executive lacked any detail concerning their potential defenses to plaintiffs’ claims for payment for work performed on three subcontracts, an affidavit of merit is “not essential to the relief sought” by defendants before entry of a default order or judgment (DeMarco v Wyndham Intl., 299 AD2d 209, 209 ; see Nason v Fisher, 309 AD2d 526 )”

The Court of Appeals should resolve this conflict. The other Departments hold that a meritorious defense is needed. The Second Circuit on construing Rule 55 after a clerks marking of default holds the same. Also, the way around this is to enter an ex-parte judgment on liability, which is something that downstate Courts frown upon unless it is a sum certain matter.

The Legal Framework

New York default practice runs on two tracks, and the meritorious-defense question plays differently on each.

After judgment, the rules are settled. A defendant moving to vacate a default judgment under CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense. The excuse prong is where most motions live or die — claims of law office failure are accepted or rejected in the court’s discretion — but the merit affidavit is an independent requirement, and a conclusory one sinks the motion.

Before judgment, the First Department charts its own course. Where a plaintiff moves for leave to enter a default under CPLR 3215 and the defendant appears and opposes (or moves to compel acceptance of a late answer under CPLR 3012(d)), Naber Electric and its antecedents (DeMarco, Nason) hold that the defendant need not tender an affidavit of merit at all. The theory: until a default order or judgment exists, the strong public policy favoring resolution on the merits requires only a reasonable excuse and the absence of prejudice.

The other Departments have not embraced that distinction with the same clarity, generally demanding the traditional two-part showing whenever a defendant seeks relief from its own default. And in federal practice, the Second Circuit requires a meritorious-defense showing even at the Rule 55(c) “good cause” stage following a mere clerk’s entry of default — the analytic stage most comparable to Naber’s pre-judgment posture.

Why This Matters for Litigants

For defendants who have defaulted, venue is destiny. In the First Department (Manhattan and the Bronx), opposing a CPLR 3215 motion with a credible excuse may suffice even if you cannot yet articulate your defenses in detail. In the Second Department and elsewhere, prepare the merit affidavit anyway — from a person with knowledge, with specifics, not boilerplate.

For plaintiffs, the First Department’s leniency changes the calculus on when to strike. Moving early for a default judgment — before the defendant surfaces — captures the stricter post-judgment standard, because once judgment is entered the defendant must satisfy both prongs of CPLR 5015(a)(1). Hence the workaround noted above: where the claim is for a sum certain, the clerk can enter judgment under CPLR 3215(a) without motion practice; otherwise, an ex parte application for judgment on liability is possible in theory, though downstate courts disfavor it.

For everyone, the split is an invitation to forum-sensitive briefing. Cite Naber Electric in the First Department; distinguish it elsewhere; and recognize that until the Court of Appeals speaks, the same facts can produce opposite outcomes across the Harlem River.

Practice Pointers

1. Always submit the merit affidavit if you can. Even in the First Department, a detailed affidavit costs little and inoculates against an appellate panel that reads the precedent narrowly.
2. Source the affidavit correctly. It must come from someone with personal knowledge — a party or an employee with firsthand involvement — not counsel.
3. Move fast after default. CPLR 3012(d) relief is far easier to obtain when the delay is short and the plaintiff cannot show prejudice.
4. Plaintiffs: paper the prejudice. Lost witnesses, faded memories, and spoliation concerns are what defeat “reasonable excuse” narratives.

Frequently Asked Questions

Do you need a meritorious defense to vacate a default in New York?

After a default judgment is entered, yes — CPLR 5015(a)(1) requires both a reasonable excuse and a potentially meritorious defense. Before entry of a default order or judgment, the First Department holds an affidavit of merit is not essential, though other Departments still expect one.

What is an affidavit of merit?

A sworn statement from a person with knowledge of the facts setting out the defendant’s potential defenses with enough detail to show the defense is real, not pro forma. Conclusory affidavits — like the one the First Department excused in Naber Electric — fail the test wherever the requirement applies.

What is the difference between vacating a default and opposing entry of a default judgment?

Opposing entry happens before judgment exists, typically in response to a CPLR 3215 motion, and is judged more leniently. Vacating a default judgment under CPLR 5015(a) happens after entry and requires the full two-part showing of excuse plus merit.

Related Resources

• Law office failure — the firm’s cluster hub on reasonable excuse and default relief
• The firm’s Legal Encyclopedia
• Personal injury practice
• Why take a default in the First Department?
• First Department applying a stringent default vacatur standard
• Another way to take a default
• Default relief denied and a questionable appeal