In surrogate's court litigation, if the opposing party fails to respond to your petition or opposition within the required timeframe, you may be entitled to a default judgment. A default judgment is a court order that resolves the case in your favor without requiring you to prove your claims, because the other side's failure to respond is treated as an admission of your allegations. However, obtaining a default judgment requires strict adherence to procedural rules, and courts are sometimes reluctant to grant them if the defaulting party can show a reasonable excuse for their non-response.
This guide explains what a default judgment is, when you can seek one, how to properly file a motion for default judgment, and what you can expect at different stages of the process.
Understanding Default and the Grounds for a Default Judgment
A party is in default when they fail to timely respond to a citation, opposition, or other pleading that requires a response. Under SCPA Section 307, if a respondent or defendant fails to answer a citation within the time allowed (typically 30 days), or fails to appear when required, the court may enter a judgment by default in favor of the party who filed the petition. A default judgment effectively ends the case because the defaulting party loses the opportunity to present their side of the story.
The grounds for default are straightforward: the opposing party did not file a timely response to your pleading. However, courts distinguish between defaults entered for failure to serve an answer and defaults entered for failure to comply with orders during the course of the litigation. A failure to respond to an initial petition is the most common basis for a default judgment request. Before a default judgment can be entered, you must prove that the other party was properly served and that they failed to respond within the required time.
The Prerequisites to Filing a Motion for Default Judgment
Before you can file a motion for default judgment, several prerequisites must be satisfied.
- Proper service: The opposing party must have been properly served with the citation or pleading. You must have proof of service—typically an affidavit from the person who served the documents or a certified return receipt if service was by certified mail.
- Expired deadline: The response deadline must have passed. You cannot file a motion for default judgment before the 30-day (or extended) response period has expired.
- No response filed: The opposing party must not have filed any response, opposition, or other pleading showing they're contesting the case. If they've filed anything, even a belated response, the matter is no longer truly in default and your motion for default judgment will fail.
- Your compliance: You must have complied with all court orders and requirements in the case. Courts won't grant default judgments to parties who are themselves in violation of court orders.
How to File a Motion for Default Judgment
Your motion for default judgment should be in writing and filed with the surrogate's court that has jurisdiction over the matter. The motion should clearly state: the case name and index number; the name of the defaulting party; the date the citation or pleading was served; the date the response was due; and the date by which you're writing the motion, establishing that the deadline has passed. You should also explain why you're entitled to relief.
Attach to your motion an affidavit proving service. This affidavit must be from the process server or the person who mailed the documents and must state the date, time, location, and method of service. If service was by certified mail, attach the certified mail receipt showing delivery. The court will not grant your default motion without clear proof of proper service.
The Court's Authority to Reject Your Default Motion
Even if a party is technically in default, courts have discretion to deny a motion for default judgment if the defaulting party presents a reasonable excuse for their non-response. Under SCPA Section 307 and case law, courts are guided by the principle that parties deserve their day in court. A default judgment can only be entered if the court is satisfied that the opposing party was properly served and had actual or constructive notice of the proceeding.
If the defaulting party was never properly served, the default judgment will be set aside. If they were served but have a legitimate reason for missing the deadline—such as a serious illness, being out of the country, or reliance on incorrect legal advice—the court may vacate the default judgment. This is why it's critical that you ensure the other side is properly served. If service is defective in any way, a default judgment you obtain may later be overturned.
What Happens After Default Judgment Is Entered
If the court grants your motion for default judgment, an order is entered against the defaulting party. This order typically awards you the relief requested in your petition. For example, if you petitioned to probate a will and the respondent defaulted, the court's default judgment order admits the will to probate and designates you as executor. If you sought a default judgment in an accounting petition against an executor for mishandling of estate funds, the court's order might hold the executor liable for the claimed amount plus interest and costs.
The defaulting party can attempt to vacate (set aside) the default judgment by filing a motion within a reasonable time, typically within a few months of the judgment being entered. To vacate a default judgment, they must show a reasonable excuse for their non-response and a meritorious defense to the underlying claim—that is, they must demonstrate they have a valid legal argument against your position. Courts are often more willing to vacate defaults early in the post-judgment period than they are months later.
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