| Mathew v Mathew |
| 2016 NY Slip Op 02060 [137 AD3d 1086] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| Soni Mathew, Appellant, v Sheeja Mathew,Respondent. |
Timothy J. Brennan, White Plains, NY (Tiffany E. Gallo of counsel), forappellant.
Andrew W. Szczesniak, White Plains, NY, for respondent.
Appeal from an amended order of the Supreme Court, Westchester County (Janet C.Malone, J.), entered September 18, 2014. The amended order granted that branch of thedefendant's cross motion which was pursuant to CPLR 5015 (a) to vacate so much of ajudgment of divorce of the same court (Francesca E. Connolly, J.) dated August 29,2012, as, upon her failure to answer the complaint or appear in the action, and her failureto appear at an inquest, awarded the plaintiff ancillary relief pertaining to the issue ofequitable distribution.
Ordered that the amended order is reversed, on the law, with costs, and that branch ofthe defendant's cross motion which was pursuant to CPLR 5015 (a) to vacate so much ofthe judgment of divorce as awarded the plaintiff ancillary relief pertaining to the issue ofequitable distribution is denied.
In November 2011, the plaintiff commenced this action for a divorce and ancillaryrelief, and the defendant failed to answer the complaint or appear in the action. On April25, 2012, the Supreme Court conducted an inquest, at which the defendant failed toappear. A judgment of divorce was issued on August 29, 2012, and served on thedefendant two days later. In June 2014, the plaintiff moved to enforce certain provisionsof the judgment of divorce. In July 2014, the defendant cross-moved, inter alia, pursuantto CPLR 5015 (a) to vacate so much of the judgment of divorce as awarded the plaintiffancillary relief pertaining to the issue of equitable distribution. In the amended orderappealed from, the Supreme Court granted that branch of the defendant's cross motion.The plaintiff appeals. We reverse.
"Although the courts have adopted a liberal policy with respect to vacating defaultsin matrimonial actions, it is still incumbent upon a defendant seeking to vacate a defaultjudgment pursuant to CPLR 5015 (a) (1) to demonstrate a reasonable excuse for his orher default and the existence of a potentially meritorious defense" (Farhadi v Qureshi, 105 AD3d990, 991 [2013]; seeCapurso v Capurso, 134 AD3d 974 [2015]; Sganga v Sganga, 95 AD3d 872, 872-873 [2012]). CPLR5015 (a) (1) provides that the motion must be made, inter alia, "within one year afterservice of a copy of the judgment or order with written notice of its entry upon themoving party" (see Sussman vJo-Sta Realty Corp., 99 AD3d 787, 788 [2012]).
Here, the defendant's motion was untimely since it was not made within one year[*2]after a copy of the judgment was served upon herwith notice of entry (seeDeutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 760 [2013]). While" '[t]he Supreme Court has the inherent authority to vacate [the] judgment in theinterest of justice, even where the statutory one-year period under CPLR 5015 (a) (1) hasexpired' " (Goldenbergv Goldenberg, 123 AD3d 761, 761-762 [2014], quoting State of New York vKama, 267 AD2d 225, 225 [1999]), here, the defendant failed to offer a reasonableexcuse for her default (seeWimmershoff v Ahuactzin, 123 AD3d 1021, 1022 [2014]; Sganga vSganga, 95 AD3d at 872-873). Since the defendant failed to demonstrate areasonable excuse for her default, we need not determine whether she had a potentiallymeritorious defense (see Sganga v Sganga, 95 AD3d at 873; Diaz v Diaz, 71 AD3d947, 948 [2010]).
Accordingly, the Supreme Court should have denied that branch of the defendant'scross motion which was pursuant to CPLR 5015 (a) to vacate so much of the judgmentof divorce as awarded the plaintiff ancillary relief pertaining to the issue of equitabledistribution. Balkin, J.P., Roman, Cohen and Maltese, JJ., concur.