| Diaz v Diaz |
| 2010 NY Slip Op 02508 [71 AD3d 947] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Tina Marie Diaz, Respondent, v Nicola A. Diaz,Appellant. |
—[*1]
In a matrimonial action in which the parties were divorced by judgment dated November 1,2004, the defendant appeals from an order of the Supreme Court, Nassau County (Diamond, J.),dated October 30, 2008, which denied his motion pursuant to CPLR 5015 (a) to vacate an orderof the same court dated March 8, 2007, inter alia, directing the entry of a money judgment infavor of the plaintiff and against him, entered upon an order dated December 11, 2006, grantingthe plaintiff's motion, among other things, for an upward modification of child support and amoney judgment for child support arrears, upon his default in opposing the plaintiff's motion.
Ordered that the order is affirmed, without costs or disbursements.
Although this Court has adopted a liberal policy with respect to vacating defaults inmatrimonial actions, it was still incumbent upon the defendant to demonstrate a reasonableexcuse for his default in opposing the plaintiff's motion, inter alia, for an upward modification ofchild support, and the existence of a meritorious defense to that motion (see Young Chen v Ruihua Li, 67AD3d 905, 906 [2009]; Ogazi vOgazi, 46 AD3d 646 [2007]; Faltings v Faltings, 35 AD3d 350 [2006]; Melish v Melish,267 AD2d 218 [1999]; French v French, 260 AD2d 430, 431 [1999]). The determinationof what constitutes a reasonable excuse for a default lies within the sound discretion of theSupreme Court (see Young Chen v Ruihua Li, 67 AD3d at 906; Cordova v Cordova, 63 AD3d 982[2009]; Cooper v Cooper, 55 AD3d866 [2008]). Contrary to the defendant's contention, the Supreme Court providentlyexercised its discretion in concluding that he failed to demonstrate the existence of a reasonableexcuse for defaulting in opposing the plaintiff's motion after he had been granted numerousadjournments to submit opposition papers and retain new counsel (see French v French,260 AD2d at 431). Since the defendant failed to demonstrate a reasonable excuse for his default,we need not determine whether he had a meritorious defense to the plaintiff's motion (seeYoung Chen v Ruihua Li, 67 AD3d at 905; Ogazi v Ogazi, 46 AD3d at 249; Matter of Lutz v Goldstone, 31 AD3d449, 450 [2006]). Skelos, J.P., Dillon, Angiolillo, Eng and Sgroi, JJ., concur.