| Cuzzo v Cuzzo |
| 2009 NY Slip Op 06794 [65 AD3d 1274] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Patricia Cuzzo, Respondent, v Ernest Cuzzo,Appellant. |
—[*1] Veneruso, Curto, Schwartz & Curto, LLP, Yonkers, N.Y. (Joseph R. Curto of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated February 16,2006, entered upon the defendant's default in appearing or answering, the defendant appealsfrom an order of the Supreme Court, Westchester County (Scarpino, J.), entered June 25, 2008,which denied his motion to reject a referee's report (Ratner, Ct. Atty. Ref.), dated November 15,2007, recommending that his motion to vacate the judgment of divorce be denied or, in thealternative, for a new hearing before a different referee, and granted the plaintiff's cross motionto confirm the referee's report.
Ordered that the order is affirmed, with costs.
The plaintiff former wife and the defendant former husband were divorced after 32 years ofmarriage by judgment of divorce dated February 16, 2006, which was entered upon thedefendant's default in appearing or answering. Pursuant to the parties' separation agreement,which was incorporated into, but did not merge with, the judgment of divorce, the plaintiff wasto receive title to the parties' two homes and the defendant was to pay all the expenses involvedin maintaining those homes.
The defendant moved to vacate the judgment of divorce in January 2007, approximately 13months after the plaintiff had served the summons with notice upon him on December 5, 2005.The defendant argued, inter alia, that his mental and physical state prevented him fromanswering or appearing in the divorce action, and that his default was therefore excusable. Thedefendant also denied having been served with the summons with notice, and further argued thatthe separation agreement was unconscionable and improperly executed.
The court directed a referee to conduct a hearing on the motion. After a two-day hearing, thereferee issued an extensive oral report finding that the defendant's testimony was incredible andlacking in merit, and concluding that the defendant failed to establish a reasonable excuse for hisdefault and a meritorious defense to the action as required by CPLR 5015 (a) (1). The defendantmoved, inter alia, to reject the referee's report and the plaintiff cross-moved to confirm [*2]the report. In the order appealed from, the Supreme Court deniedthe defendant's motion and granted the plaintiff's cross motion.
Although this Court has adopted a liberal policy with respect to vacating defaults inmatrimonial actions, it is still incumbent upon a defendant to demonstrate a reasonable excusefor his default and the existence of a meritorious defense (see Ogazi v Ogazi, 46 AD3d 646 [2007]; Atwater v Mace, 39 AD3d 573,574 [2007]; Faltings v Faltings, 35AD3d 350 [2006]). Contrary to the defendant's contention, he failed to submit anycompetent evidence that his default was excusable because it was caused by a mental or physicalcondition (see Dominguez v Carioscia,1 AD3d 396 [2003]; Neuman v Greenblatt, 260 AD2d 616, 617 [1999];Zolov v Donovan, 138 AD2d 484, 485 [1988]).
In light of this determination, we need not consider whether the defendant demonstrated theexistence of a meritorious defense (see Ogazi v Ogazi, 46 AD3d at 646; Matter of Lutz v Goldstone, 31 AD3d449, 450 [2006]). Spolzino, J.P., Miller, Angiolillo and Dickerson, JJ., concur.