Arvanetes v. Arvanetes

191 A.D.2d 893, 595 N.Y.S.2d 128, 1993 N.Y. App. Div. LEXIS 2253

Opinion

—Appeal (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Beisner, J.), entered October 16, 1991 in Dutchess County, which denied defendant’s motion to vacate a default judgment entered against him.

It is true that courts have adopted a more liberal attitude in vacating default judgments in matrimonial actions (see, e.g., Wayasamin v Wayasamin, 167 AD2d 460; O’Brien v O’Brien, 149 AD2d 830). Nevertheless, the party seeking vacatur must still show both a reasonable excuse for the default and a meritorious defense (see, Schrader v Schrader, 152 AD2d 987). In our view, defendant offered no reasonable excuse for his default in this action. The record reveals that upon being served with the motion, defendant consulted two attorneys prior to the motion’s return date. Plaintiff’s attorney informed both attorneys that plaintiff would not accept defendant’s settlement offer. At no time did defense counsel make any applications or submit any opposition to plaintiff’s motion. There is no evidence to support defendant’s claims of fraud or deception (see, Lins v Lins, 98 AD2d 608). Defendant also failed to demonstrate the existence of a meritorious defense. We would also note that, under the circumstances of this case, there is no reason to vacate the financial provisions of the default judgment (see, Walczak v Walczak, 177 AD2d 1045; Ryan v Ryan, 177 AD2d 895). Accordingly, the denial of defendant’s motion to vacate should be affirmed.

Weiss, P. J., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.