Branch v. Branch

Appellate Division of the Supreme Court of New York

Branch v. Branch

66 A.D.3d 809, 886 N.Y.S.2d 633

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 2009

StatusPublished

Cited by1 cases

This text of 66 A.D.3d 809 (Branch v. Branch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Branch v. Branch, 66 A.D.3d 809, 886 N.Y.S.2d 633 (N.Y. Ct. App. 2009).

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Opinion

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated June 24, 2008, which denied her motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, and the defendant’s motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar is granted.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion. The defendant was approximately one hour late in appearing for trial, there was no indication that her lateness was willful or inexcusable, and there was no indication that the plaintiff was prejudiced by the short delay (see Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 35 AD3d 668 [2006]; Jolkovsky v Legeman, 32 AD3d 418 [2006]). Moreover, the courts generally have “a liberal policy with respect to vacating defaults in matrimonial actions” (Passas v Passas, 18 AD3d 842 [2005]). Mastro, J.P., Dillon, Dickerson, Belen and Lott, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated June 24, 2008, which denied her motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, and the defendant’s motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar is granted.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion. The defendant was approximately one hour late in appearing for trial, there was no indication that her lateness was willful or inexcusable, and there was no indication that the plaintiff was prejudiced by the short delay (see Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 35 AD3d 668 [2006]; Jolkovsky v Legeman, 32 AD3d 418 [2006]). Moreover, the courts generally have “a liberal policy with respect to vacating defaults in matrimonial actions” (Passas v Passas, 18 AD3d 842 [2005]). Mastro, J.P., Dillon, Dickerson, Belen and Lott, JJ., concur.

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Bluebook (online)

66 A.D.3d 809, 886 N.Y.S.2d 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-v-branch-nyappdiv-2009.

Opinion

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