Lesko v. Lesko

91 A.D.2d 1176, 459 N.Y.S.2d 146, 1983 N.Y. App. Div. LEXIS 16526

Opinion

— Order unanimously affirmed, without costs, and motion to vacate default judgment denied. Memorandum: On a prior appeal we reversed an order denying defendant’s motion to vacate a default judgment of divorce entered in favor of plaintiff, and we remitted the matter to afford defendant, an opportunity to show that she had a meritorious defense, and upon such showing, for a hearing on the issue of whether, as claimed by defendant, her default was the product of “overreaching and undue influence” by plaintiff (see Lesko v Lesko, 79 AD2d 1100). On remittitur, Special Term found that defendant’s answer, served subsequent to our prior decision, constituted a showing of merit beyond mere conclusory allegations. Upon the hearing, the court found that plaintiff “did not exert any influence upon the defendant in an effort to get her to default on the matrimonial action” and further found that defendant’s default “was due to her own choice, a choice which she made intelligently and knowingly”. On those and other findings supported by the record, the court concluded that the judgment of divorce entered on the 25th day of January, 1979 “is in all respects legal and valid”. (Appeal from order of Supreme Court, Ontario County, Contiguglia, J. — vacate default.) Present — Dillon, P. J,, Doerr, Denman, Boomer and Schnepp, JJ.