Lins v. Lins

Appellate Division of the Supreme Court of New York

Lins v. Lins

98 A.D.2d 608, 469 N.Y.S.2d 342, 1983 N.Y. App. Div. LEXIS 20889

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

DecidedDecember 1, 1983

StatusPublished

Cited by7 cases

This text of 98 A.D.2d 608 (Lins v. Lins) 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

Lins v. Lins, 98 A.D.2d 608, 469 N.Y.S.2d 342, 1983 N.Y. App. Div. LEXIS 20889 (N.Y. Ct. App. 1983).

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Opinion

Order, Supreme Court, New York County (Callahan, J.), entered January 27, 1983, which, inter alia, granted defendant’s motion to vacate the default judgment of divorce entered against her on March 10,1982, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, the motion denied and the judgment of divorce reinstated. While courts have adopted a more liberal attitude in vacating defaults in matrimonial actions (see, e.g., Daly v Daly, 74 AD2d 814; Levy v Levy, 67 AD2d 998; Hewlett v Hewlett, 63 AD2d 977; Hegarty v Hegarty, 48 AD2d 891), “it is still incumbent upon the moving party to show a reasonable excuse for the default and the existence of a meritorious defense” (Gorman v Gorman, 92 AD2d 709, 710). In her moving papers defendant failed to make any showing whatsoever with respect to either requirement. Nor did plaintiff, as defendant contends, practice any fraud or deception upon the court in moving for the default judgment. He prpperly advised the court of the existence of the Rockland County action and of the dormancy of that proceeding. In such circumstances it was an abuse of discretion to vacate defendant’s default. Concur — Sullivan, J. P., Ross, Carro, Asch and Bloom, JJ.

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Order, Supreme Court, New York County (Callahan, J.), entered January 27, 1983, which, inter alia, granted defendant’s motion to vacate the default judgment of divorce entered against her on March 10,1982, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, the motion denied and the judgment of divorce reinstated. While courts have adopted a more liberal attitude in vacating defaults in matrimonial actions (see, e.g., Daly v Daly, 74 AD2d 814; Levy v Levy, 67 AD2d 998; Hewlett v Hewlett, 63 AD2d 977; Hegarty v Hegarty, 48 AD2d 891), “it is still incumbent upon the moving party to show a reasonable excuse for the default and the existence of a meritorious defense” (Gorman v Gorman, 92 AD2d 709, 710). In her moving papers defendant failed to make any showing whatsoever with respect to either requirement. Nor did plaintiff, as defendant contends, practice any fraud or deception upon the court in moving for the default judgment. He prpperly advised the court of the existence of the Rockland County action and of the dormancy of that proceeding. In such circumstances it was an abuse of discretion to vacate defendant’s default. Concur — Sullivan, J. P., Ross, Carro, Asch and Bloom, JJ.

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Bluebook (online)

98 A.D.2d 608, 469 N.Y.S.2d 342, 1983 N.Y. App. Div. LEXIS 20889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lins-v-lins-nyappdiv-1983.

Opinion

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