Midland Credit Management, Inc., Plaintiff, v. Shamise Poston, Defendant. (2026)

Relief Requested

The defendant, pro se, moves, by order to show cause, in effect, pursuant to CPLR 5015 to vacate a clerk's judgment entered July 11, 2025.

Background

On April 22, 2025, the plaintiff commenced this action to recover an alleged balance due on a credit account. According to an affidavit of service, the defendant was served pursuant to CPLR 308(2) by leaving the commencement papers with a person of suitable age and discretion at the defendant's residence and by mailing a copy of the commencement papers to the same address. On July 9, 2025, the plaintiff submitted a proposed judgment to the Nassau County Clerk, seeking judgment against the defendant in the sum of $2,581.06. A judgment in the amount of $2,544.06 was entered on July 11, 2025.

Motion Sequence 001

The defendant, pro se, moves, by order to show cause, in effect, pursuant to CPLR 5015 to vacate the clerk's judgment. In an affirmation, the defendant states, "I was unaware of this case, my first time hearing about it is when I received this income execution. When I called to inquire about it, I was informed this was for false teeth. This is something that was previously removed from my credit due to it being fraud."

In an attorney affirmation in opposition to the motion, counsel for the plaintiff contends that the defendant failed to demonstrate a reasonable excuse for the defendant's default and a meritorious defense.

Discussion

A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788 [2d Dept 2012]). Here, the defendant's conclusory denial of receipt of the summons and complaint does not amount to a reasonable excuse (see HSBC Bank USA, N.A. v Eliyahu, 170 AD3d 1130, 1131 [2d Dept 2019]).

However, the clerk did not have the authority to enter a judgment in the plaintiff's favor since the plaintiff's damages do not constitute a "sum certain" within the meaning of CPLR 3215(a) (see Barnett v Diamond Fin. Co., Inc., 202 AD3d 651, 653 [2d Dept 2022]; HSBC Bank USA, N.A. v Wielgus, 131 AD3d 510, 512 [2d Dept 2015]), which provides a sufficient ground to vacate the judgment (see Woodward v Eighmie Moving & Storage, Inc., 151 AD2d 892, 893 [3d Dept 1989]; see also Darling v Fernette, 234 AD3d 1230, 1232 n 2 [3d Dept 2025]).

Conclusion

Based on the foregoing, it is hereby,

ORDERED that the plaintiff's motion, in effect, pursuant to CPLR 5015 to vacate the clerk's judgment entered July 11, 2025, is GRANTED; and it is further,

ORDERED that that pursuant to the provisions of 22 NYCRR 202.19 and 22 NYCRR 202.23, a preliminary conference will be scheduled in this matter within 30 days after the date of this decision and order.

This constitutes the decision and order of this Court.

Dated: September 8, 2026

Mineola, NY

E N T E R :

HON. SARIKA KAPOOR, A.J.S.C.

Sarika Kapoor, J.