| Venturella-Ferretti v Ferretti |
| 2010 NY Slip Op 04777 [74 AD3d 792] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Jo-Ann Venturella-Ferretti, Appellant, v James Ferretti,Respondent. |
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In an action, inter alia, to set aside a stipulation of settlement which was incorporated but notmerged into the parties' judgment of divorce, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Emerson, J.), dated January 21, 2009, which denied her motion for leaveto enter a default judgment upon the defendant's failure to appear at certain court conferences.
Ordered that the order is affirmed, without costs or disbursements.
Although all allegations contained in the complaint were admitted based upon thedefendant's default (see Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984];McClelland v Climax Hosiery Mills, 252 NY 347 [1930]), the legal conclusions to bedrawn from such proof are reserved for the Supreme Court's determination (see CPLR3215 [b], [e]; Matter of Dyno v Rose, 260 AD2d 694, 698 [1999]; Green v DolphyConstr. Co., 187 AD2d 635 [1992]; Silberstein v Presbyterian Hosp. in City of N.Y.,96 AD2d 1096 [1983]; Wine Antiques v St. Paul Fire & Mar. Ins. Co., 40 AD2d 657[1972], affd 34 NY2d 781 [1974]). "A plaintiff's right to recover upon a defendant'sdefault in answering is governed by CPLR 3215 . . . which requires that theplaintiff state a viable cause of action" (Fappiano v City of New York, 5 AD3d 627, 628 [2004]). " 'Wherea valid cause of action is not stated, the party moving for judgment is not entitled to therequested relief, even on default' " (Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930,932 [2006], quoting Green v Dolphy Constr. Co., 187 AD2d at 636; see Cree vCree, 124 AD2d 538, 541 [1986]).
The Supreme Court correctly denied the plaintiff's motion for leave to enter a defaultjudgment, since the plaintiff failed to state valid causes of action warranting the vacatur of theparties' stipulation of settlement.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Florio, Angiolillo andAustin, JJ., concur.