| Dervisevic v Dervisevic |
| 2011 NY Slip Op 08111 [89 AD3d 785] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Eileen Dervisevic, Respondent, v Edin Dervisevic,Appellant. |
—[*1] Goodman Jurist & Pandolfo, LLP, Garden City, N.Y. (Howard Jurist of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Ross, J.), entered June 4,2010, as denied his motion pursuant to CPLR 5015 to vacate his default in appearing oranswering the complaint, (2), as limited by his brief, from so much of a judgment of the samecourt entered July 2, 2010, as awarded child custody, child support, and maintenance to theplaintiff and equitably distributed the marital property, and (3) from an order of the same courtdated November 22, 2010, which denied his motion for leave to renew and reargue his motion tovacate his default.
Ordered that the appeal from the order entered on June 4, 2010, is dismissed; and it isfurther,
Ordered that the appeal from the judgment is dismissed (see CPLR 5511), exceptinsofar as it brings up for review so much of the order entered June 4, 2010, as denied thedefendant's motion to vacate his default (see James v Powell, 19 NY2d 249, 256 n 3[1967]); and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,[*2]
Ordered that the appeal from so much of the order datedNovember 22, 2010, as denied that branch of the plaintiff's motion which was for leave toreargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated November 22, 2010, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order entered June 4, 2010, must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought up forreview and have been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
Although this Court has adopted a liberal policy with respect to vacating defaults inmatrimonial actions, it is still incumbent upon a defendant to demonstrate a reasonable excusefor his or her default and the existence of a potentially meritorious defense (see Ogazi v Ogazi, 46 AD3d 646[2007]; Atwater v Mace, 39 AD3d573, 574 [2007]; Faltings vFaltings, 35 AD3d 350 [2006]). Here, the defendant failed to submit any competentevidence that his default was excusable. Contrary to the defendant's contentions, the plaintiffproperly served the defendant personally with a summons and notice, which had written upon itsface that it was an "Action for a divorce," and which specified the nature of the ancillary reliefdemanded (see Domestic Relations Law §§ 211, 232 [a]). Having beenproperly served, the defendant was required to make an appearance.
The Supreme Court properly denied that branch of the defendant's motion which was forleave to renew his motion to vacate his default. "A motion for leave to renew is not a secondchance freely given to parties who have not exercised due diligence in making their first factualpresentation" (Elder v Elder, 21AD3d 1055, 1055 [2005]; seeMatter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727 [2009]). A motion forleave to renew must be based upon new facts, not offered on the original application, "that wouldchange the prior determination" (CPLR 2221 [e] [2]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884[2009]). The new or additional facts must have either not been known to the party seekingrenewal (see Matter of Shapiro v State of New York, 259 AD2d 753 [1999]) or may, inthe Supreme Court's discretion, be based on facts known to the party seeking renewal at the timeof the original motion (see Cole-Hatchard v Grand Union, 270 AD2d 447 [2000]).However, in either instance, a "reasonable justification" for the failure to present such facts onthe original motion must be presented (CPLR 2221 [e] [3]; see Matter of Korman v BellmorePub. Schools, 62 AD3d at 884). What constitutes a "reasonable justification" is within theSupreme Court's discretion (Heaven vMcGowan, 40 AD3d 583, 586 [2007]). Here, the Supreme Court did not improvidentlyexercise its discretion in denying leave to renew. The "new evidence" offered by the defendantconsisted of information which the defendant knew existed at the time of his motion to vacate,and he failed to set forth a reasonable justification as to why he failed to submit this informationin the first instance (see generally May vMay, 78 AD3d 667 [2010]; Huma v Patel, 68 AD3d 821, 822 [2009]).
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson, Chambersand Miller, JJ., concur.