| Lueders v Boma-Lueders |
| 2011 NY Slip Op 05675 [85 AD3d 1130] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Meno Lueders, Respondent, v Nellie Boma-Lueders,Appellant. |
—[*1] Ostrer Rosenwasser, LLP, Montgomery, N.Y. (Moriah M. Niblack and Stewart A.Rosenwasser of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from an order of theSupreme Court, Rockland County (Weiner, J.), dated June 29, 2010, which denied thosebranches of her motion which were pursuant to CPLR 5015 (a) (1) to vacate her default inappearing for trial and to vacate so much of a judgment of divorce of the same court enteredNovember 24, 2009, made after an inquest, as, upon her default, awarded the plaintiff ancillaryrelief pertaining to the issues of custody, visitation, child support, and equitable distribution.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,those branches of the defendant's motion which were pursuant to CPLR 5015 (a) (1) to vacate herdefault in appearing for trial and to vacate so much of the judgment of divorce as awarded theplaintiff ancillary relief pertaining to the issues of custody, visitation, child support, and equitabledistribution are granted, the provisions of the judgment of divorce with respect to the issues ofcustody, visitation, child support, and equitable distribution are vacated, and the matter isremitted to the Supreme Court, Rockland County, for a trial on the ancillary issues of custody,visitation, child support, and equitable distribution, and a new determination on those issues andthe entry of an appropriate amended judgment of divorce thereafter.
The Supreme Court improvidently exercised its discretion in denying those branches of thedefendant's motion which were pursuant to CPLR 5015 (a) (1) to vacate her default in appearingfor trial and to vacate so much of the judgment of divorce as awarded the plaintiff ancillary reliefpertaining to the issues of custody, visitation, child support, and equitable distribution. Althougha party seeking to vacate a default must establish a reasonable excuse for the default and apotentially meritorious cause of action or defense, the courts of this state have adopted a liberalpolicy toward vacating defaults in matrimonial actions (see Osman v Osman, 83 AD3d 1022, 1023 [2011]; Bird v Bird, 77 AD3d 1382,1382-1383 [2010]; Ito v Ito, 73AD3d 983 [2010]). In matrimonial actions, "the State's interest in the marital res and alliedissues [such as child support and custody] . . . favor[s] dispositions on the merits"(Adams v Adams, 255 AD2d 535, 536 [1998] [internal quotation marks omitted]; seeOsman v Osman, 83 AD3d at 1023; Payne v Payne, 4 AD3d 512, 513 [2004]; Viner v Viner,291 AD2d 398 [2002]).[*2]
Here, the record reveals that more than one week beforethe scheduled trial date of August 10, 2009, the defendant, who was not represented by counsel atthe time, sent a letter to the Supreme Court by facsimile transmission requesting an adjournment.In her letter, which enclosed supporting documentation, the defendant explained that heremployer had denied her request for leave to attend the trial, that she was worried she would loseher job if she took leave without her employer's approval, and that she had received approval fora subsequent period of leave and would make herself available to the court at that time. However,on the date of the trial, the Supreme Court mailed the defendant's correspondence back to herbecause she had failed to provide a copy of it to the plaintiff's attorney, and it proceeded toinquest in her absence. Under these circumstances, the defendant established that she had areasonable excuse for failing to appear at the trial. Moreover, in support of her motion, sheestablished that she had a potentially meritorious position with regard to the ancillary issues ofcustody, visitation, child support, and equitable distribution, which were resolved after theinquest held upon her default (see Osman v Osman, 83 AD3d at 1024; Keepin v Worman, 71 AD3d 1093[2010]; Adams v Adams, 255 AD2d at 536). Dillon, J.P., Covello, Chambers andRoman, JJ., concur.