Jamieson v. Roman

Appellate Division of the Supreme Court of New York

Jamieson v. Roman

36 A.D.3d 861, 830 N.Y.S.2d 217

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

DecidedJanuary 30, 2007

StatusPublished

Cited by5 cases

This text of 36 A.D.3d 861 (Jamieson v. Roman) 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

Jamieson v. Roman, 36 A.D.3d 861, 830 N.Y.S.2d 217 (N.Y. Ct. App. 2007).

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Opinion

In an action for a divorce and ancillary relief, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated September 16, 2005, as denied those branches of his motion which were pursuant to CPLR 5015 (a) (1) and 3012 (d) to vacate his default in appearing or answering the complaint and to extend his time to serve an answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

[862]*862A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to extend the time to answer or to compel the acceptance of an untimely answer (see CPLR 5015 [a] [1]; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649 [2006]; Ennis v Lema, 305 AD2d 632, 633 [2003]). While the courts have adopted a generally liberal policy of vacating defaults in matrimonial disputes, the movant is still obligated to make the requisite showing (see Rolston v Rolston, 261 AD2d 377 [1999]; Conner v Conner, 240 AD2d 614 [1997]; Bernholz v Bernholz, 184 AD2d 542 [1992]), and “whether a particular judgment should be opened remains a matter of discretion” (Wayasamin v Wayasamin, 167 AD2d 460, 462 [1990]).

Here, the Supreme Court providently exercised its discretion in rejecting the defendant’s proffered excuses that the parties were engaged in settlement negotiations and that his former Pennsylvania counsel failed to advise him to retain counsel in New York for an appearance in this action, in light of the defendant’s lengthy delay in appearing even after he was served with the judgment of divorce (see Antoine v Bee, 26 AD3d 306 [2006]; Sobel v Village of Scarsdale, 255 AD2d 500 [1998]; Wayasamin v Wayasamin, supra at 462). Furthermore, the defendant did not contest the grounds for divorce (see Benjamin v Benjamin, 249 AD2d 348, 349 [1998]; Wayasamin v Wayasamin, supra at 462; Anderson v Anderson, 144 AD2d 512 [1988]).

The defendant’s remaining contention is improperly raised for the first time on appeal. Schmidt, J.R, Rivera, Skelos and Lunn, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated September 16, 2005, as denied those branches of his motion which were pursuant to CPLR 5015 (a) (1) and 3012 (d) to vacate his default in appearing or answering the complaint and to extend his time to serve an answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

[862]*862A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to extend the time to answer or to compel the acceptance of an untimely answer (see CPLR 5015 [a] [1]; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649 [2006]; Ennis v Lema, 305 AD2d 632, 633 [2003]). While the courts have adopted a generally liberal policy of vacating defaults in matrimonial disputes, the movant is still obligated to make the requisite showing (see Rolston v Rolston, 261 AD2d 377 [1999]; Conner v Conner, 240 AD2d 614 [1997]; Bernholz v Bernholz, 184 AD2d 542 [1992]), and “whether a particular judgment should be opened remains a matter of discretion” (Wayasamin v Wayasamin, 167 AD2d 460, 462 [1990]).

Here, the Supreme Court providently exercised its discretion in rejecting the defendant’s proffered excuses that the parties were engaged in settlement negotiations and that his former Pennsylvania counsel failed to advise him to retain counsel in New York for an appearance in this action, in light of the defendant’s lengthy delay in appearing even after he was served with the judgment of divorce (see Antoine v Bee, 26 AD3d 306 [2006]; Sobel v Village of Scarsdale, 255 AD2d 500 [1998]; Wayasamin v Wayasamin, supra at 462). Furthermore, the defendant did not contest the grounds for divorce (see Benjamin v Benjamin, 249 AD2d 348, 349 [1998]; Wayasamin v Wayasamin, supra at 462; Anderson v Anderson, 144 AD2d 512 [1988]).

The defendant’s remaining contention is improperly raised for the first time on appeal. Schmidt, J.R, Rivera, Skelos and Lunn, JJ., concur.

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Bluebook (online)

36 A.D.3d 861, 830 N.Y.S.2d 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamieson-v-roman-nyappdiv-2007.

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