| Sganga v Sganga |
| 2012 NY Slip Op 03435 [95 AD3d 872] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Nina Sganga, Respondent, v Louis Sganga,Appellant. |
—[*1] Neal D. Futerfas, White Plains, N.Y. (Jennifer O'Hara of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Westchester County (Christopher, J.), datedMarch 1, 2011, as denied those branches of his motion which were to vacate an order of the samecourt (Walker, J.), dated August 3, 2010, inter alia, determined that the plaintiff was entitled to adivorce on the ground of constructive abandonment, entered upon his default in appearing at trialand at an inquest, and to disqualify the plaintiff's attorneys.
Ordered that the order is affirmed insofar as appealed from, with costs.
"A defendant seeking to vacate a default must provide a reasonable excuse for the default anddemonstrate a potentially meritorious defense to the action" (Ramirez v Islandia Exec. Plaza, LLC, 92 AD3d 747, 748 [2012];see CPLR 5015 [a] [1]; Castle vAvanti, Ltd., 86 AD3d 531, 531 [2011]; Bethune v Prioleau, 82 AD3d 810, 810 [2011]; NY SMS Waterproofing, Inc. vCongregation Machne Chaim, Inc., 81 AD3d 617, 617-618 [2011]; Maida v Lessing's Rest. Servs., Inc., 80AD3d 732, 733 [2011]). "A motion to vacate a default is addressed to the sound discretionof the Supreme Court" (Kohn vKohn, 86 AD3d 630, 630 [2011]). "Although this Court has adopted a liberal policywith respect to vacating defaults in matrimonial actions, it is still incumbent upon a defendant todemonstrate a reasonable excuse for his or her default and the existence of a potentiallymeritorious defense" (Dervisevic vDervisevic, 89 AD3d 785, 786 [2011]; see Rolston v Rolston, 261 AD2d 377,377 [1999]). Here, the Supreme Court providently exercised its discretion in denying that branchof the defendant's motion which was to vacate the order entered upon his default. The defendantfailed to demonstrate a reasonable excuse for his failure to appear at trial. We therefore need notreach the issue of whether the defendant proffered a potentially meritorious defense.
Under the particular circumstances of this case, the Supreme Court also providentlyexercised its discretion in denying that branch of the defendant's motion which was to disqualifythe plaintiff's attorneys (see McDade v McDade, 240 AD2d 1010, 1011 [1997];Natiello v Natiello, 209 AD2d 389 [1994]). Rivera, J.P., Dickerson, Leventhal andCohen, JJ., concur.