| Vujanic v Petrovic |
| 2013 NY Slip Op 01077 [103 AD3d 791] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Branko Vujanic, Appellant, v Ivana Petrovic,Respondent. |
—[*1] Bodnar & Milone, LLP, White Plains, N.Y. (Pamela J. Jenson of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from (1) an orderof the Supreme Court, Westchester County (Christopher, J.), dated November 4, 2011,which denied his motion to vacate an order of the same court dated July 8, 2011, grantingthe defendant's unopposed motion for an award of counsel fees in the sum of $150,000,and (2) an order of the same court, also dated November 4, 2011, which denied hismotion to direct the defendant to turn over to him certain items of personal property.
Ordered that the orders are affirmed, with costs.
To vacate his default in opposing the defendant's motion for counsel fees, theplaintiff was required to demonstrate a reasonable excuse for his default and a potentiallymeritorious opposition to the motion (see CPLR 5015 [a] [1]; Herrera v MTA Bus Co., 100AD3d 962 [2012]; Infantev Breslin Realty Dev. Corp., 95 AD3d 1075, 1076 [2012]; Rocco v Family Foot Ctr., 94AD3d 1077, 1079 [2012]; Kohn v Kohn, 86 AD3d 630 [2011]). A motion to vacate adefault is addressed to the sound discretion of the court (see Kohn v Kohn, 86AD3d at 630).
Here, the Supreme Court did not improvidently exercise its discretion in declining toaccept the plaintiff's proffered excuse of law office failure, since it was not supported bya " 'detailed and credible' explanation of the default" (Kohn v Kohn, 86 AD3d at630, quoting Remote MeterTech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]; see Strunk v Revenge CabCorp., 98 AD3d 1029, 1030 [2012]; Infante v Breslin Realty Dev.Corp., 95 AD3d at 1076-1077). Furthermore, even if the court had accepted theexcuse of law office failure, the plaintiff failed to set forth any basis for a finding that hehad a potentially meritorious opposition to the motion. The plaintiff's motion papers didnot address this prong of the required showing, and his motion was, therefore, properlydenied on that ground alone (cf.Herrera v MTA Bus Co., 100 AD3d 962 [2012]; Wells Fargo Bank, N.A. vCervini, 84 AD3d 789, 790 [2011]; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 567[2011]).
The Supreme Court also properly denied the plaintiff's motion to direct the defendant[*2]to turn over to him certain items of personal propertythat were determined, in the judgment of divorce, to be his separate property. Thoseitems are the subject of a restraining notice served by the defendant, pursuant to thepostjudgment enforcement provisions of CPLR article 52, to enforce a money judgmentagainst the plaintiff (see CPLR 5222; Rozzo v Rozzo, 274 AD2d 53, 55[2000]). Skelos, J.P., Dickerson, Chambers and Hinds-Radix, JJ., concur.