Black v. Black

141 A.D.2d 689, 529 N.Y.S.2d 574, 1988 N.Y. App. Div. LEXIS 6970

Opinion

In a matrimonial action in which the parties were divorced by a judgment entered December 27, 1977, the defendant husband appeals from an order of the Supreme Court, Queens County (Corrado, J.), dated February 2, 1987, which denied his motion to vacate the judgment of divorce.

Ordered that the order is affirmed, without costs or disbursements.

Although this court has adopted a liberal policy with respect to vacating default judgments in matrimonial actions (see, D’Alleva v D’Alleva, 127 AD2d 732; Antonovich v Antonovich, 84 AD2d 799; Hegarty v Hegarty, 48 AD2d 891), the opening of a default is discretionary. We agree with the Supreme Court that the defendant was personally served with a summons and complaint and that personal jurisdiction was obtained over him in the divorce action. Furthermore, the defendant did not move to vacate the judgment until almost nine years after its entry and has failed to establish a meritorious defense to the plaintiff wife’s allegations of cruel and inhuman treatment. Under the circumstances, we find that the court did not improvidently exercise its discretion in denying the motion to vacate the divorce judgment (see, Candeloro v Candeloro, 133 AD2d 731; Diachuk v Diachuk, 117 AD2d 985). Bracken, J. P., Eiber, Hooper and Harwood, JJ., concur.