| Goldenberg v Goldenberg |
| 2014 NY Slip Op 08601 [123 AD3d 761] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Joel Goldenberg, Respondent, v NicoleGoldenberg, Appellant. |
Ronald T. Rollock, Mineola, N.Y., for appellant.
Solomon & Herrera, PLLC, Levittown, N.Y. (Michael D. Solomon of counsel),for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Maron, J.), datedJanuary 6, 2014, as denied that branch of her motion which was pursuant to CPLR 5015(a) (1) to vacate so much of a judgment of divorce of the same court (Palmieri, J.),entered October 3, 2011, as, upon her default in appearing at an inquest, awarded theplaintiff ancillary relief pertaining to the issues of visitation, child support, equitabledistribution, and counsel fees.
Ordered that the order is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, that branch of the defendant's motion which waspursuant to CPLR 5015 (a) (1) to vacate so much of the judgment of divorce as awardedthe plaintiff ancillary relief pertaining to the issues of visitation, child support, equitabledistribution, and counsel fees is granted, those provisions of the judgment of divorce arevacated, and the matter is remitted to the Supreme Court, Nassau County, for an inqueston the ancillary issues of visitation, child support, equitable distribution, and counselfees, a new determination of those issues, and the entry of an appropriate amendedjudgment of divorce thereafter.
The Supreme Court improvidently exercised its discretion in denying that branch ofthe defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate so much ofthe judgment of divorce as awarded the plaintiff ancillary relief pertaining to the issuesof visitation, child support, equitable distribution, and counsel fees. Although a motion tovacate a judgment on the grounds of excusable default must be made within one yearafter service of a copy of the judgment, "[t]he Supreme Court has the inherent authorityto vacate [the] judgment in the interest of justice, even where the statutory one-yearperiod under CPLR 5015 (a) (1) has expired" (State of New York v Kama, 267AD2d 225, 225 [1999]). Further, while a party seeking to vacate a default must establisha reasonable excuse for the default and a meritorious claim or defense, "the courts of thisState have adopted a liberal policy toward vacating defaults in matrimonial actions" (Osman v Osman, 83 AD3d1022, 1023 [2011]; see Itov Ito, 73 AD3d 983 [2010]; Cuzzo v Cuzzo, 65 AD3d 1274 [2009]). "In matrimonialactions, 'the State's interest in the marital res and allied issues,' such as child support andcustody, 'favor[s] dispositions on the merits' " (Anekwe v Okoroafor, 121AD3d 930, 930 [2014], quoting Adams v Adams, 255 AD2d 535, 536[1998]; see Lueders vBoma-Lueders, 85 AD3d 1130, 1131 [2011]; Osman v Osman, 83AD3d at 1023).
[*2] Here, the recorddemonstrates that the defendant's former counsel failed to apprise her of the fact that hedid not answer the complaint and filed a motion to serve a late answer that had beendenied on the ground that the papers were defective, and that an inquest had beenscheduled which he did not attend. Further, subsequent to the entry of the judgment ofdivorce granting the plaintiff ancillary relief, the defendant's former counsel falselyrepresented to the defendant that he was in the process of moving to resolve issuesconcerning, inter alia, equitable distribution and visitation. The defendant did notdiscover that a judgment of divorce had been entered upon her failure to appear at theinquest until more than a year after the judgment had been entered when she was servedwith a Family Court petition seeking enforcement of the judgment.
Under these circumstances, the defendant established that she had both a reasonableexcuse for failing to appear at the inquest and for failing to move to vacate the judgmentwithin the one-year period set forth in CPLR 5015 (a) (1). Moreover, in support of hermotion, she established that she had a potentially meritorious position with regard to theancillary issues of visitation, child support, equitable distribution, and counsel fees,which were resolved after the inquest held upon her default (see Lueders vBoma-Lueders, 85 AD3d at 1132; Osman v Osman, 83 AD3d at 1024).Skelos, J.P., Balkin, Austin and Barros, JJ., concur.