Formichella v. Formichella

Appellate Division of the Supreme Court of New York

Formichella v. Formichella

134 A.D.2d 481, 521 N.Y.S.2d 265, 1987 N.Y. App. Div. LEXIS 50676

Appellate Division of the Supreme Court of the State of New York·Decided November 23, 1987·Published·Cited by 5 cases

Opinion

In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Kings County (Imperato, J.H.O.), dated June 10, 1986, which, inter alia, granted a divorce to the plaintiff wife and awarded her maintenance, equitable distribution of the marital property and counsel fees. This appeal brings up for review an order of the same court, dated January 20, 1984, which denied the defendant’s motion to open his default in appearing.

[482]*482Ordered that the judgment is affirmed, with costs.

Although the policy of this court is liberal with respect to vacatur of defaults in matrimonial actions (see, Ray v Ray, 108 AD2d 905; Breen v Breen, 99 AD2d 539; Levy v Levy, 67 AD2d 998), where the default is willful, as here, it would constitute an improvident exercise of discretion to open the default (see, Perellie v Crimson’s Rest., 108 AD2d 903; Murphy v Hall, 24 AD2d 892; Miller v Hainzl, 5 AD2d 764, mot to dismiss appeal withdrawn 8 NY2d 912). Thompson, J. P., Niehoff, Rubin and Sullivan, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Kings County (Imperato, J.H.O.), dated June 10, 1986, which, inter alia, granted a divorce to the plaintiff wife and awarded her maintenance, equitable distribution of the marital property and counsel fees. This appeal brings up for review an order of the same court, dated January 20, 1984, which denied the defendant’s motion to open his default in appearing.

[482]*482Ordered that the judgment is affirmed, with costs.

Although the policy of this court is liberal with respect to vacatur of defaults in matrimonial actions (see, Ray v Ray, 108 AD2d 905; Breen v Breen, 99 AD2d 539; Levy v Levy, 67 AD2d 998), where the default is willful, as here, it would constitute an improvident exercise of discretion to open the default (see, Perellie v Crimson’s Rest., 108 AD2d 903; Murphy v Hall, 24 AD2d 892; Miller v Hainzl, 5 AD2d 764, mot to dismiss appeal withdrawn 8 NY2d 912). Thompson, J. P., Niehoff, Rubin and Sullivan, JJ., concur.

Formichella v. Formichella, 134 A.D.2d 481, 521 N.Y.S.2d 265, 1987 N.Y. App. Div. LEXIS 50676 (N.Y. Ct. App. 1987).

Pincite

134 A.D.2d 481 (Formichella v. Formichella) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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