| Mills v Mills |
| 2013 NY Slip Op 07320 [111 AD3d 1306] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| Judy Mills, Respondent, v Richard Mills,Appellant. |
—[*1]
Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan,A.J.), entered October 10, 2012. The order denied the motion of defendant to vacate adefault judgment of divorce.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order denying his motion to vacate adefault judgment of divorce. The default judgment was entered in 2002 and, in 2011,defendant first applied for poor person relief in order to file a motion to vacate thedefault. Upon the denial of the motion for poor person relief, defendant moved pro seseeking, among other relief, leave to reargue that motion and, after the denial of thereargument motion, defendant moved to vacate the default judgment. Contrary todefendant's contention, Supreme Court did not err in denying defendant's motion tovacate the default.
Initially, we note that defendant's contention that the court erred in denying hisapplication for poor person relief is not properly before us. Defendant did not file anotice of appeal with respect to the order that initially denied that application (seeCPLR 5513 [a]; Matter ofHSBC Bank USA, NA [Makowski], 72 AD3d 1515, 1516-1517 [2010]; DiSanto v DiSanto, 29 AD3d935, 935 [2006]). In addition, in a subsequent order, the court denied defendant'smotion for leave to reargue his application for poor person relief, and defendant failed tofile a notice of appeal with respect to that order. Even if he had filed a notice of appeal,however, it is settled that "[a]n order denying a motion to reargue is not appealable"(Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]).
Defendant's further contention that the court was required to appoint a guardian adlitem for him is raised for the first time on appeal and therefore is not properly before us(see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). We neverthelessreview that contention inasmuch as it involves "[a] question of law appearing on the faceof the record . . . [that] could not have been avoided by the opposing partyif brought to that party's attention in a timely manner" (Oram v Capone, 206AD2d 839, 840 [1994]). We reject defendant's contention, however, and conclude that hefailed to establish that the court was required to appoint a guardian ad litem beforegranting the default judgment (see generally CPLR 1201, 1203; cf. State ofNew York v Kama, 267 AD2d 225, 225-226 [1999]). To the contrary, evenassuming, arguendo, that the evidence submitted by [*2]defendant was properly considered by the court (cf. generally Mohrmann vLynch-Mohrmann, 24 AD3d 735, 736 [2005]), we conclude that the evidence"failed to set forth any professional medical opinion that [he] may have lacked the mentalability to adequately protect [his] rights and interests during the relevant time period"(id.).
With respect to defendant's contentions concerning vacatur of the default judgment,it is well settled that "[t]he determination of whether . . . to vacate a default. . . is generally left to the sound discretion of the court" (Ahmad v Aniolowiski, 28AD3d 692, 692 [2006]; see Shouse v Lyons, 265 AD2d 901, 902 [1999]).Contrary to defendant's contention, we conclude that the court properly determined "thatdefendant had actual notice of the default judgment as early as [2004, andunquestionably had notice of it in 2009], thus, [his 2011] motion to vacate the defaultjudgment pursuant to CPLR 5015 (a) (1)—which permits vacatur of a judgment onthe ground of excusable default within one year—is . . . untimely"(State of N.Y. Higher Educ.Servs. Corp. v Sparozic, 35 AD3d 1069, 1070 [2006], lv denied 8NY3d 958 [2007]). Present—Scudder, P.J., Smith, Fahey, Sconiers and Valentino,JJ.