| Alam v Alam |
| 2014 NY Slip Op 09088 [123 AD3d 1066] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1](December 31, 2014)
| Nurussabah Alam, Respondent, v MansoorAlam, Appellant. |
Hagan, Coury & Associates, Brooklyn, N.Y. (Paul Golden of counsel), forappellant.
Sandra M. Spector, Bethpage, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from a judgmentof the Supreme Court, Suffolk County (Santorelli, J.), entered October 24, 2013, which,upon his failure to appear for a trial on ancillary economic issues, and upon an order ofthe same court dated October 7, 2013, denying his motion to vacate his default inappearing for the trial on ancillary economic issues, inter alia, directed equitabledistribution of the marital property and awarded the plaintiff child support andmaintenance.
Ordered that the appeal from the judgment is dismissed except insofar as it brings upfor review the order dated October 7, 2013, denying the defendant's motion to vacate hisdefault in appearing for a trial on ancillary economic issues; and it is further,
Ordered that the judgment is reversed insofar as reviewed, on the facts and in theexercise of discretion, without costs or disbursements, the defendant's motion to vacatehis default in appearing for a trial on ancillary economic issues is granted, the order datedOctober 7, 2013, is modified accordingly, the provisions of the judgment with respect toall ancillary economic issues are vacated, and the matter is remitted to the SupremeCourt, Suffolk County, for a trial on the ancillary economic issues, and a newdetermination on those issues and the entry of an appropriate amended judgmentthereafter.
Although no appeal lies from a judgment entered on the default of the appealingparty (see CPLR 5511), an appeal from such a judgment does bring up for reviewthose matters which were the subject of contest before the Supreme Court (see Tun v Aw, 10 AD3d651, 652 [2004]; James v Powell, 19 NY2d 249, 256 n 3 [1967]; Sarlo-Pinzur v Pinzur, 59AD3d 607, 607-608 [2009]). Therefore, on this appeal by the defendant from thejudgment, which was entered upon his failure to appear for a trial on ancillary economicissues, this Court's review is limited to the Supreme Court's order dated October 7, 2013,which denied the defendant's motion to vacate his default (see Atwater v Mace, 39 AD3d573, 573-574 [2007]; O'Donnell v O'Donnell, 172 AD2d 654 [1991]).
"Although a party seeking to vacate a default must establish both a reasonable excusefor the default and a [potentially] meritorious cause of action or defense, 'this Court hasadopted a liberal policy with respect to vacating defaults in matrimonial matters becausethe state's interest in the marital res and related issues such as child support and custodyfavors dispositions on the [*2]merits' " (Ito v Ito, 73 AD3d 983,983 [2010], quoting Matter of Pinto v Putnam County Support Collection Unit,295 AD2d 350, 351 [2002]).
Here, the defendant failed to appear in court on July 18, 2013, because his counselwas unaware that a trial was scheduled on that date and, consequently, he never informedthe defendant of the required court appearance. The Supreme Court immediatelyproceeded to an inquest in the defendant's absence, and the defendant promptly moved tovacate his default. Under these circumstances, it is clear that the defendant's default wasnot willful, and that he did not intend to abandon any of his claims or defenses (seeIto v Ito, 73 AD3d at 983; Adams v Adams, 255 AD2d 535 [1998]; Louisv Louis, 231 AD2d 612 [1996]). Furthermore, the defendant has a potentiallymeritorious position with respect to certain ancillary economic issues which wereresolved after the inquest (seeOsman v Osman, 83 AD3d 1022, 1024 [2011]; Ito v Ito, 73 AD3d at984).
Accordingly, the defendant's motion to vacate his default should have been granted.Dillon, J.P., Hinds-Radix, Maltese and Barros, JJ., concur.