Bray v. Bray

84 A.D.3d 479, 921 N.Y.S.2d 850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 2011
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 20, 2010, which, to the extent appealed from, granted so much of plaintiff husband’s motion as sought to vacate a judgment of separation, findings of fact and conclusions of law, same court (Ellen Gesmer, J.), entered July 1, 2009, on plaintiffs default, only to the extent of vacating the default and those provisions of the judgment, findings of fact and conclusions of law involving child support, private school ‘tuition, fees and arrears, unreimbursed medical payments, maintenance, health insurance for the defendant wife, life insurance, the 401(k) plan, and the pro rata share of the parties’ income, unanimously affirmed, without costs.

The court providently exercised its discretion in granting plaintiffs motion to the extent indicated. Considering that plaintiff was not represented by counsel and has no other record of missed court dates, we accept his excuses for his default (see Gass v Gass, 42 AD3d 393, 396 [2007]). In addition, plaintiff presented a meritorious defense insofar as he contends that the court (Ellen Gesmer, J.) improperly imputed additional income and set amounts he cannot afford to pay (see Hunter v Annexstein, 141 AD2d 449, 451 [1988]). Concur — Tom, J.E, Mazzarelli, Acosta, DeGrasse and Román, JJ.