Kennedy v. Kennedy

73 A.D.2d 662, 423 N.Y.S.2d 198, 1979 N.Y. App. Div. LEXIS 14505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1979
• Status: Published

Opinion

—In a matrimonial action, the plaintiff husband appeals from stated portions of an order of the Supreme Court, Nassau County, dated November 8, 1978, which, inter alia, denied his motion to vacate his default in failing to timely serve a complaint in the action. The appeal brings up for review so much of a further order of the same court, entered January 30, 1979, as, upon reargument, adhered to the original determination. Appeal from the order dated November 8, 1978 dismissed as academic, without costs or disbursements. That order was superseded by the order granting reargument. Order entered January 30, 1979 affirmed insofar as reviewed, without costs or disbursements. We agree with Special Term that the allegations in the plaintiff’s verified complaint are too vague and indefinite to constitute an affidavit of merits sufficient to warrant vacatur of the plaintiff’s default (see Oloff v Oloff, 54 AD2d 584; Price v Price, 52 AD2d 800, 801). Furthermore, since the complaint alleges incidents which occurred in 1968 and 1969, we also agree with Special Term that the circumstances and long delay herein prejudice the defendant’s ability to present any bona fide defense (cf. Hessen v Hessen, 33 NY2d 406; Yates v Yates, 58 AD2d 579). Lazer, J. P., Gulotta, Cohalan and Gibbons, JJ., concur.