| Wimmershoff v Ahuactzin |
| 2014 NY Slip Op 08988 [123 AD3d 1021] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Ralf Wimmershoff, Respondent, v Letitia R.Gonzalez Ahuactzin, Appellant. |
Harvey G. Landau, White Plains, N.Y. (Ivana Peric of counsel), for appellant.
Nancy D. Kellman, White Plains, N.Y. (Adrienne Abraham of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment datedDecember 22, 2011, upon the defendant's failure to appear or answer, the defendantappeals from an order of the Supreme Court, Westchester County (Colangelo, J.), datedFebruary 19, 2013, which denied her motion, inter alia, pursuant to CPLR 5015 (a) tovacate the judgment, and to vacate a final order of protection of the same court(Christopher, J.), dated October 28, 2011, entered upon her failure to appear at theinquest.
Ordered that the order dated February 19, 2013, is affirmed, with costs.
To vacate a default in a matrimonial action, the defendant must demonstrate areasonable excuse for the default and the existence of a potentially meritorious defense(see CPLR 5015 [a] [1]; Sganga v Sganga, 95 AD3d 872, 872-873 [2012]; Diaz v Diaz, 71 AD3d947, 948 [2010]; Ogazi vOgazi, 46 AD3d 646 [2007]; Faltings v Faltings, 35 AD3d 350 [2006]). Here, thedefendant failed to establish a reasonable excuse for her failure to serve a notice ofappearance. Furthermore, the defendant did not provide a reasonable excuse for herpersistent and willful failures to appear at the scheduled court proceedings and theinquest for a period of more than nine months, and did not move to vacate the defaultsuntil after a judgment of divorce was entered against her (see Rolston v Rolston,261 AD2d 377, 378 [1999]). We therefore need not reach the issues of whether thedefendant proffered a potentially meritorious defense to the action or to the issuance ofthe final order of protection (see Sganga v Sganga, 95 AD3d at 873; Diaz vDiaz, 71 AD3d at 948; Young Chen v Ruihua Li, 67 AD3d 905 [2009]; Ogazi v Ogazi, 46 AD3d646 [2007]). Accordingly, the Supreme Court providently exercised its discretion indenying the defendant's motion. Dickerson, J.P., Chambers, Cohen and Duffy, JJ.,concur.
Motion by the respondent on an appeal from an order of the Supreme Court,Westchester County, dated February 19, 2013, inter alia, to strike stated portions of theappellant's brief on the ground that they refer to matter dehors the record. By decisionand order on motion of this Court dated March 5, 2014, that branch of the motion whichis to strike stated portions of the appellant's brief was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to strike stated portions of theappellant's brief on the ground that they refer to matter dehors the record is granted, andthose portions of the appellant's brief referring to matter dehors the record which arelisted in paragraphs 4 through 6, and paragraph 8, of the affirmation in support of themotion by Adrienne Abraham dated January 15, 2014, are deemed stricken and have notbeen considered on the appeal. Dickerson, J.P., Chambers, Cohen and Duffy, JJ.,concur.