Denial of Default Judgment Where Defendant Denied Receiving Summons and Complaint Affirmed

Posted: September 21, 2026 / Written by: Thomas A. Kissane / Category Default Judgments

Denial of Default Judgment Where Defendant Denied Receiving Summons and Complaint Affirmed

On July 9, 2026, the First Department unanimously affirmed Commercial Division Justice Robert R. Reed’s denial of plaintiff’s motion for a default judgment and grant of defendant’s motion for additional time to answer, holding that Supreme Court providently exercised its discretion in light of New York’s strong public policy favoring resolution of disputes on the merits. The case is G-Unit Books, Inc. v Tompkins, 251 A.D.3d 424 (1st Dep’t 2026) affirming a March 2026 order in Index No. 654265/2025.

The defendant’s answer was approximately four months late, and plaintiff alleged no prejudice from the delay. Defendant denied receipt of the summons and complaint and specifically denied residing at the addresses where plaintiff had attempted service. The First Department found that explanation reasonable, noting that plaintiff had failed to provide evidence that defendant lived at either address and that information obtained by the process server during the attempted service supported defendant’s account. The Court also rejected plaintiff’s contention that defendant’s affidavit was conclusory or insufficient because she did not disclose her actual address. Slip op., pp. 1-2.

The First Department rejected plaintiff’s argument that defendant’s default should be regarded as willful because publicity surrounding the lawsuit should have alerted her to the action. Defendant denied learning of the action until October 2025, and plaintiff offered no evidence refuting that denial. The Court specifically found that a TMZ report stating that the outlet had sought comment from defendant did not establish that defendant actually received notice of the lawsuit. Id., p. 2.

Defendant was not required to demonstrate a meritorious defense because plaintiff had never obtained a default order or judgment and, in any event, her affidavit sufficed to show a potentially meritorious defense. Id., pp. 2-3.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning default judgments or extensions of time to answer.