Formichella v. Formichella

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1987
• Status: Published

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.

Ordered 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v Crimson’s Rest., 108 AD2d 903; Murphy v Hall, 24 AD2d 892; Miller v Hainzl, 5 AD2d 764, mot to dismiss appeal withdrawn 8 NY2d 912).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.