| Osman v Osman |
| 2011 NY Slip Op 03564 [83 AD3d 1022] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Jay Sanford Osman, Respondent, v Joyce Regina Osman,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals from (1) an order of theSupreme Court, Suffolk County (Kent, J.), entered March 16, 2010, which denied her motion, ineffect, to vacate her default in appearing for a trial on ancillary economic issues, and (2) ajudgment of the same court entered November 16, 2010, which, upon the order, and upon adecision dated July 29, 2010, made after an inquest, inter alia, equitably distributed the maritalproperty and awarded her maintenance in the sum of only $1,800 per month for a period of sixyears.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the appeal from the judgment is dismissed (see CPLR 5511) exceptinsofar as it brings up for review the order entered March 16, 2010, denying the defendant'smotion to vacate her default in appearing for a trial on ancillary economic issues; and it is further,
Ordered that the judgment is reversed insofar as reviewed, on the facts and in the exercise ofdiscretion, the defendant's motion to vacate her default in appearing for a trial on ancillaryeconomic issues is granted, the provisions of the judgment with respect to all ancillary economicissues are vacated, and the matter is remitted to the Supreme Court, Suffolk County, for a trial onthe ancillary economic issues, and a new determination on those issues and the entry of anappropriate amended judgment thereafter; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from that order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court improvidently exercised its discretionin denying the defendant's motion to vacate her default in appearing for a trial on the ancillaryeconomic issues attendant to the parties' divorce. Although a party seeking to vacate a defaultmust establish a reasonable excuse for the default and a potentially meritorious cause of action ordefense, the courts of this state have adopted a liberal policy toward vacating defaults inmatrimonial actions (see Bird v Bird, 77 AD3d 1382, 1383 [2010]; Ito v Ito, 73AD3d 983 [2010]; De Pass v De Pass, 42 AD3d 723, 724 [2007]). In matrimonialactions, "[t]he State's interest in the marital res and allied issues . . . favor[s]dispositions on the merits" (Payne v Payne, 4 AD3d 512, 513 [2004], quoting Viner vViner, 291 AD2d 398, 398 [2002]; see Adams v Adams, 255 AD2d 535, 536 [1998];Fayet v Fayet, 214 AD2d 534, 535 [1995]). Here, the record reveals that the defendantformer wife (hereinafter the wife) was taken directly from court to the hospital by ambulance onDecember 15, 2009, where she underwent medical tests, including a chest x-ray and EKG, beforebeing released with a diagnosis of anxiety. Under these circumstances, the wife's claim that theanxiety attack she suffered on December 15, 2009, caused her to misapprehend the SupremeCourt's instructions as to the time she was required to return to court the next day, constituted areasonable excuse for her failure to appear on the morning of December 16, 2009. Furthermore,the parties had been married for 27 years at the time of the commencement of the action, and theplaintiff former husband allegedly was the primary wage earner throughout the marriage. Thus,the wife has a potentially meritorious position with respect to all ancillary economic issues,including maintenance, which were resolved after the inquest held upon her default (see Birdv Bird, 77 AD3d at 1383; Ito v Ito, 73 AD3d at 984; Viner v Viner, 291AD2d at 398-399; Adams v Adams, 255 AD2d at 536). Skelos, J.P., Belen, Lott andCohen, JJ., concur.