| Hwang v Tam |
| 2010 NY Slip Op 03069 [72 AD3d 741] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Dorothy Hwang, Respondent, v Daniel Tam,Appellant. |
—[*1] Barton R. Resnicoff, Great Neck, N.Y. (Lisa M. Williams of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals from a judgment of theSupreme Court, Queens County (Lebowitz, J.), entered October 22, 2008, which, upon an orderof the same court entered May 8, 2008, inter alia, denying his motion, in effect, to vacate hisdefault in appearing at a compliance conference on September 17, 2007, and at an inquest oneconomic issues held on the same date, among other things, awarded the plaintiff a divorce basedupon cruel and inhuman treatment, and disposed of all economic issues between the parties.
Ordered that the judgment is modified, on the law, by deleting the second through eighth andthe tenth through thirteenth decretal paragraphs thereof, which dispose of all economic issuesbetween the parties; as so modified, the judgment is affirmed, without costs or disbursements,that branch of the defendant's motion which was, in effect, to vacate his default in appearing atthe inquest on economic issues is granted, the order entered May 8, 2008, is modifiedaccordingly, and the matter is remitted to the Supreme Court, Queens County, for a new inqueston the economic issues and the entry of an appropriate amended judgment thereafter.
Although the courts have adopted a liberal policy with respect to the vacatur of defaults inmatrimonial actions, it is still the general rule that it is incumbent upon a defaulting defendant toestablish a reasonable excuse for the default and a meritorious defense (see Atwater v Mace, 39 AD3d573, 574 [2007]; Wexler vWexler, 34 AD3d 458, 459 [2006]; Rosen v Rosen, 308 AD2d 482, 483 [2003];Baruch v Baruch, 224 AD2d 649 [1996]; Conner v Conner, 240 AD2d 614, 615[1997]). The Supreme Court did not err in finding the defendant in default for his failure toappear at a compliance conference (see 22 NYCRR 202.27), and in later refusing tovacate the default. The defendant failed to offer a reasonable excuse for his failure to appear. Inaddition, he failed to establish a meritorious defense.
Nonetheless, "when a judgment of divorce is being granted on the default of one of theparties, an inquest should be taken on the economic issues" (Otto v Otto, 150 AD2d 57,68 [1989]). "Where, as here, the defaulting party has appeared in the action, the inquest 'shouldbe scheduled with notice given to the defaulting party in such a manner as may be directed bythe court' " (Tovar v Tovar, 32 AD3d [*2]1015,1015-1016 [2006], quoting Otto v Otto, 150 AD2d at 68-69; see Rosen v Rosen,308 AD2d at 483). Since in the instant case the Supreme Court immediately proceeded to inquestupon the defendant's default, we remit the matter to the Supreme Court, Queens County, for anew inquest on the outstanding economic issues, upon notice to the defendant and his counsel, sothat the defendant may participate in the inquest as permitted by law (see Amato v Fast Repair, Inc., 15AD3d 429, 430 [2005]).
The defendant's requests for pendente lite counsel fees and an adjustment in the pendente litechild support award are improperly raised for the first time on appeal. Mastro, J.P., Miller,Austin and Roman, JJ., concur.