| Ito v Ito |
| 2010 NY Slip Op 04338 [73 AD3d 983] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Fabiola Ito, Appellant, v Vinicius Ito,Respondent. |
—[*1] Robert Gruenspecht, Jamaica, N.Y., attorney for the child.
In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of theSupreme Court, Queens County (Fitzmaurice, J.), entered October 22, 2008, which, upon aninquest (Dorsa, J.), after her default in appearing at trial, and upon an order of the same court(Fitzmaurice, J.), dated October 15, 2008, denying her motion to vacate her default in appearingat trial, inter alia, awarded the defendant a divorce on his counterclaim based on constructiveabandonment, and directed equitable distribution of the marital property.
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, withcosts, the plaintiff's motion to vacate her default is granted, and the order dated October 15,2008, is modified accordingly.
Although a party seeking to vacate a default must establish both a reasonable excuse for thedefault and a meritorious cause of action or defense, "this Court has adopted a liberal policy withrespect to vacating defaults in matrimonial matters because the state's interest in the marital resand related issues such as child support and custody favors dispositions on the merits"(Matter of Pinto v Putnam County Support Collection Unit, 295 AD2d 350, 351 [2002];see Gonzalez v Richmond, 68AD3d 1057 [2009]; Branch vBranch, 66 AD3d 809 [2009]; Russo v Camarasana, 26 AD3d 367, 368 [2006]; Payne v Payne, 4 AD3d 512, 513[2004]; Viner v Viner, 291 AD2d 398 [2002]; Salley v Salley, 258 AD2d 454,455 [1999]).
Here, the record establishes that the plaintiff failed to appear in court on April 28, 2008, thefirst scheduled trial date in this action, because of her attorney's mistaken belief that the matterwas scheduled for April 29, 2008. The Supreme Court immediately proceeded to conduct aninquest, at which it granted the defendant's oral application to amend his answer to assert acounterclaim for a divorce on the ground of constructive abandonment, and resolved all issuesrelating to visitation, child support, maintenance, and equitable distribution based solely upon histestimony and submissions. The plaintiff and her attorney appeared in court on April 29, 2008,and upon learning that the Supreme Court had [*2]proceeded toinquest in her absence, the plaintiff promptly moved to vacate her default. Under thesecircumstances, it is clear that the plaintiff's default was not willful, and that she did not intend toabandon her claims (see Louis v Louis, 231 AD2d 612 [1996]). Furthermore, theplaintiff has a meritorious position on the issues which were resolved after the inquest.Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff'smotion to vacate her default (seeGonzalez v Richmond, 68 AD3d 1057 [2009]; Russo v Camarasana, 26 AD3dat 368; Payne v Payne, 4 AD3d at 513; Wong v Wong, 300 AD2d 473, 474[2002]; Viner v Viner, 291 AD2d 398 [2002]; Louis v Louis, 231 AD2d 612[1996]). Covello, J.P., Florio, Eng and Chambers, JJ., concur.