| Capurso v Capurso |
| 2015 NY Slip Op 09396 [134 AD3d 974] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Robert Capurso, Respondent, v ChristineCapurso, Appellant. |
Bruce A. Young, New York, N.Y., for appellant.
McGuire Condon, P.C., Huntington, N.Y. (Karen D. McGuire of counsel), forrespondent.
Appeal from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.),dated June 7, 2013. The order, insofar as appealed from, denied those branches of thedefendant's motion which were pursuant to CPLR 5015 (a) to vacate (a) a judgment ofdivorce of that court entered November 23, 2009, after an inquest, upon the defendant'sfailure to appear at trial, and (b) so much of an order of that court dated September 2,2010, entered after a separate inquest, upon the defendant's failure to appear at trial, asawarded the plaintiff ancillary economic relief.
Ordered that the order dated June 7, 2013, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof denying that branch of thedefendant's motion which was to vacate so much of the order dated September 2, 2010,as awarded the plaintiff ancillary economic relief, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order dated June 7, 2013, isaffirmed insofar as appealed from, without costs or disbursements, and the matter isremitted to the Supreme Court, Suffolk County, for a trial on the ancillary economicissues attendant to the parties' divorce and the entry of an appropriate amended judgmentof divorce thereafter.
Contrary to the Supreme Court's determination, the defendant timely moved pursuantto CPLR 5015 (a) to vacate both a judgment of divorce entered November 23, 2009, andso much of an order dated September 2, 2010, as awarded the plaintiff ancillaryeconomic relief. A motion to vacate a judgment or order on grounds of excusable defaultmust be made "within one year after service of a copy of the judgment or order withwritten notice of its entry upon the moving party, or, if the moving party has entered thejudgment or order, within one year after such entry" (CPLR 5015 [a] [1]). Here, theplaintiff did not submit any proof that he ever served the defendant with written notice ofentry of the judgment or order. The defendant served notices of entry of the judgmentand the order dated December 5, 2012, in conjunction with her motion, which motionwas made in January 2013. Therefore, the motion was timely (see id.).
Contrary to the Supreme Court's determination, the defendant's motion was notbarred by the doctrine of laches, as the requisite showing of prejudice was not made (see Brown v Lutheran Med.Ctr., 107 AD3d 837, 838-839 [2013]; Rosenfeld v Rosenblum, 176AD2d 645, 646 [1991]; see alsoMatter of Hiletzaris, 105 AD3d 740 [2013]).
[*2] "Although the courts have adopted a liberal policywith respect to vacating defaults in matrimonial actions, it is still incumbent upon adefendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) todemonstrate a reasonable excuse for his or her default and the existence of a potentiallymeritorious defense" (Farhadi vQureshi, 105 AD3d 990, 991 [2013]; see Dervisevic v Dervisevic, 89 AD3d 785, 785 [2011]).The determination of what constitutes a "reasonable excuse" lies within the sounddiscretion of the Supreme Court (see Eastern Sav. Bank, FSB v Charles, 103 AD3d 683, 684[2013]; Rivera v Komor, 69AD3d 833 [2010]).
Here, the Supreme Court providently exercised its discretion in denying that branchof the defendant's motion which was to vacate the judgment of divorce, which wasentered after an inquest, upon her failure to appear on the scheduled trial date.Considering the procedural history and particular facts of the case, the court providentlyexercised its discretion in determining that the defendant's submissions supporting thisbranch of her motion failed to adequately substantiate her excuse that she had swine fluand had to be hospitalized due to a back injury resulting from a fall (see Dimopoulos v Caposella,118 AD3d 739, 740 [2014]; Wells Fargo Bank, N.A. v Cean Owens, LLC, 110 AD3d872, 872 [2013]). The defendant's remaining contentions as to the above issues arewithout merit.
However, the Supreme Court improvidently exercised its discretion in denying thatbranch of the defendant's motion which was to vacate so much of the order datedSeptember 2, 2010, as awarded the plaintiff ancillary economic relief. That order wasentered after an inquest, upon her failure to appear at a trial on the ancillary economicissues attendant to the parties' divorce. The defendant, who was proceeding pro se at thetime, established that she did not receive notice of the trial date. The record does notcontain a notice of entry of the order that set the date of the trial on ancillary economicissues, or any other admissible evidence showing that the defendant was notified of thattrial date. Therefore, the defendant demonstrated a reasonable excuse for not appearing atthat trial (see CPLR 5015 [a] [1]; Osman v Osman, 83 AD3d 1022, 1023 [2011]; Ito v Ito, 73 AD3d 983[2010]; Viner v Viner, 291 AD2d 398 [2002]).
The defendant also demonstrated a potentially meritorious defense with respect to theancillary economic issues, including equitable distribution, spousal support, and childsupport, based upon the length of the marriage and the parties' respective incomes(see Ito v Ito, 73 AD3d at 984; Viner v Viner, 291 AD2d at398-399).
Accordingly, the Supreme Court should have vacated so much of the order datedSeptember 2, 2010, as awarded the plaintiff ancillary economic relief, and we remit thematter to the Supreme Court, Suffolk County, for a trial on the ancillary economic issuesattendant to the parties' divorce and the entry of an appropriate amended judgment ofdivorce thereafter.
The defendant's remaining contentions either are without merit or need not bereached in light of our determination. Chambers, J.P., Hall, Duffy and Barros, JJ.,concur.