default judgement appeal

[juliebb]

New York

I sued my former employer in small claims and won by default as they did not show up. They had 30 days to pay or appeal and did neither. After 45 days, I filed a motion for financial disclosure, paid the fees (including having the papers served). The CEO appeared for the financial disclosure hearing and asked for the case to be reopened. He claims he had a doctors appointment the day of the original case, left a message on a voice mail of the court, then showed up an hour late, but our case was already heard. He claims to have later filed for an appeal by mail, but claims the letter never arrived, as the filing fee check is still uncashed. The judge agreed to consider re-opening the case after a session of mediation.

My questions are, are these excuses acceptable or plausible? Should there be a record of his showing up late? And shouldn't he have filed the appeal in person or registered mail, and/or make sure the appeal was received?

 

[JETX]

If a default judgment is granted because the defendant did not appear, he/she may ask the court to re-open the case and restore it for a trial upon a showing of good cause.

The judge will hear the Defendants reasons for missing the scheduled trial date, and after hearing the facts he could decide to re-open the case and set another trial date. The success or failure of the Defendant is entirely up to the facts that he can present to the court and his ability to convince the court that he made every effort to prevent the absence.

If he is successful in convincing the court that the absence was unavoidable, the judge will re-set a new trial date and you will have to present your case again.

Your questions:
Q1) "are these excuses acceptable or plausible?"
A1) No one can answer this question. They could be absolutely honest and the error may have been the courts (though it seems too coincidental), or they could be absolutely bogus.

Q2) "Should there be a record of his showing up late?"
A2) Not necessarily. No one acts as 'hall monitor' to document who comes and goes from the courtroom. And unless he made it a point to have a court staff note his arrival, there wouldn't be any record.

Q3) "And shouldn't he have filed the appeal in person or registered mail, and/or make sure the appeal was received?"
A3) It would certainly have been 'better' (for him) if he had sent his appeal by FAX (with record) or by registered mail or some other 'proof of delivery', but there is no requirement that he do this. And his failure to obtain proof opens a door for you to challenge his claim.

If you have an opportunity to challenge his appeal, you might consider asking for, or getting, verification of his 'doctor appointment' (receipt, note or review of doctor records) and a review of his check records to show that his appeal fee check was issued AND IS NUMBERED in correct sequence with the others. (it is easy to post- or pre-date a check, but much harder to 'insert' a check in the middle of others in the register).

 

[juliebb]

Thank you!