Affidavits of Non-Receipt and Default Judgment Procedures in NY Personal Injury Cases

The insurer searched its computer system and found no record of the lawsuit or bill. Its witness still could not explain how the office receiving those documents handled its mail. That gap defeated the vacatur motion in Westchester Medical Center.

Last reviewed: September 2026.

Historical note: Westchester Medical Center (January 5, 2010) rejected this insurer’s proof under CPLR 5015(a)(1). Jason’s CPLR 317 question below was his observation, not a ruling by the court under that section.

The receiving office mattered

The senior claims examiner worked in Texas. Service and the billing records concerned the insurer’s Pennsylvania office, whose procedures the examiner did not establish. The same affidavit therefore failed on two separate points: an excuse for not answering and a defense based on nonreceipt of the bill. The provider had submitted proof that the bill was mailed and signed for.

The Second Department reversed the order vacating the clerk’s judgment and denied the insurer’s motion. It sent the provider’s contempt application back for a decision on the merits; it did not itself find contempt.

CPLR 317 is a different route

CPLR 317 concerns a nonappearing defendant served other than by personal delivery to the defendant or a designated CPLR 318 agent. Relief requires lack of personal notice of the summons in time to defend and a meritorious defense. The application must fall within one year after knowledge of entry and no more than five years after entry. The section excludes divorce, annulment and partition actions.

Improper service is not a requirement of section 317. Lack of jurisdiction is separately addressed by CPLR 5015(a)(4). Westchester Medical applied the reasonable-excuse and meritorious-defense requirements; it did not announce a universal third requirement of no prejudice. Jason’s question about using section 317 remains a question about an alternative motion, not an additional holding.

Jason’s original comment

Jason’s January 2010 observations follow unchanged. His alternative CPLR 317 argument is commentary; the opinion decided the motion under CPLR 5015(a)(1).

What we see here is that in order to demonstrate lack of receipt, whether it be a summons and complaint or a bill, the insurance carrier needs to set forth a detailed procedure as to the incoming mail, which would be sufficient to raise the inference that the incoming item was not received. This is the opposite of the usual issue, i.e., proving that outgoing mail reached the post office within the prescribed time limits.

Also, why didn’t Defendant move to vacate in accordance with CPLR 317? I am just curious. The result would have been the same since a meritorious defense was not found to have existed.

Frequently asked questions

Can an insurance company vacate a default judgment by claiming they never received the lawsuit?

Nonreceipt alone did not establish relief in Westchester Medical. The insurer failed to show both a reasonable excuse and a meritorious defense under CPLR 5015(a)(1). CPLR 317 is a separate route with its own requirements.

What happens if someone from a different office signs the non-receipt affidavit?

The location was not itself disqualifying. The Texas examiner failed to show knowledge of how the Pennsylvania office handled the summons and the bills.

How long does a defendant have to move to vacate a default judgment?

CPLR 317 sets one year from knowledge of entry, with a five-year outer limit from entry. CPLR 5015(a)(1) instead runs from service with written notice of entry, or entry if the moving party entered the judgment or order.

Is it easier to challenge service under CPLR 317 than to claim excusable default under CPLR 5015?

CPLR 317 does not require improper service. It concerns qualifying nonpersonal service, failure to receive personal notice in time to defend, a meritorious defense and statutory time limits. Jurisdictional relief is separately addressed in CPLR 5015(a)(4).

What constitutes a “meritorious defense” for vacating a default judgment?

The moving party needs facts supporting a potentially successful defense. Here, the examiner’s unsupported account of nonreceipt did not answer the provider’s proof that its bill was mailed and received.

Connect to the Encyclopedia

Start with the default judgments and vacatur collection. Related case notes:

• Chechen: an unsupported excuse after missed conferences
• Lamar: a late answer before a default order existed
• Freedom Chiropractic: motion notice and an answer in the record
• A.B. Medical: workload and delay in seeking vacatur

For review of a particular deadline, default or court order, contact the office.