Fall v. Diallo

2017 NY Slip Op 1449, 147 A.D.3d 641, 46 N.Y.S.3d 874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2017
• Docket: 3180 308749/12
• Status: Published

Opinion

Judgment of divorce, Supreme Court, New York County (Lancelot B. Hewitt, Special Ref.), entered April 1, 2015, and bringing up for review prior orders, same court and Referee, both entered June 8, 2015, which, respectively, determined that defendant wife’s amended answer had not been timely or properly served, and denied the wife’s motion to vacate her default at a hearing, unanimously affirmed, without costs.

The wife failed to seek leave of court before filing her amended answer, and she was outside the time limit for mak ing an amendment without leave (see CPLR 3025 [a], [b]). Accordingly, the motion court properly determined that the wife’s amended answer was improper and untimely.

The motion court also properly denied the wife’s motion to vacate her default, since she failed to establish the presence of a meritorious defense (Goncalves v Stuyvesant Dev. Assoc., 232 AD2d 275, 276 [1st Dept 1996]). Given the lack of a valid amended answer alleging annulment, the annulment defense that the wife currently relies upon was not properly before the court.

Concur — Friedman, J.P., Richter, Kapnick and Kahn, JJ.