McNally v. McNally

Appellate Division of the Supreme Court of New York

McNally v. McNally

127 A.D.3d 943, 9 N.Y.S.3d 69

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

DecidedApril 15, 2015

Docket2013-05317

StatusPublished

This text of 127 A.D.3d 943 (McNally v. McNally) 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

McNally v. McNally, 127 A.D.3d 943, 9 N.Y.S.3d 69 (N.Y. Ct. App. 2015).

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Opinion

In a matrimonial action in which the parties were divorced by judgment dated November 15, 2005, the defendant appeals, as limited by his brief, from so much an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 26, 2013, as denied his motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate an order of the same court (Pines, J.), dated August 1, 2006, which granted the plaintiffs unopposed motion, inter alia, to hold him in contempt of court.

Ordered that the order dated March 26, 2013, is affirmed insofar as appealed from, with costs.

To succeed on his motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate a prior order granting the plaintiffs unopposed motion, inter alia, to hold him in contempt of court, the defendant was required to establish both a reasonable excuse for his failure to oppose the plaintiffs motion and the existence of a potentially meritorious opposition to that motion (see Diaz v Diaz, 71 AD3d 947, 948 [2010]). Since the defendant failed to establish a reasonable excuse for his failure to oppose the plaintiffs motion, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant’s motion (see Hasanji v Hasanji, 121 AD3d 753 [2014]; Diaz v Diaz, 71 AD3d at 948). In light of the defendant’s failure to establish a reasonable excuse, we need not address the defendant’s contentions regarding whether he had a potentially meritorious opposition to the plaintiffs motion (see Diaz v Diaz, 71 AD3d at 948).

Balkin, J.P., Hall, Miller and Duffy, JJ., concur.

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In a matrimonial action in which the parties were divorced by judgment dated November 15, 2005, the defendant appeals, as limited by his brief, from so much an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 26, 2013, as denied his motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate an order of the same court (Pines, J.), dated August 1, 2006, which granted the plaintiffs unopposed motion, inter alia, to hold him in contempt of court.

Ordered that the order dated March 26, 2013, is affirmed insofar as appealed from, with costs.

To succeed on his motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate a prior order granting the plaintiffs unopposed motion, inter alia, to hold him in contempt of court, the defendant was required to establish both a reasonable excuse for his failure to oppose the plaintiffs motion and the existence of a potentially meritorious opposition to that motion (see Diaz v Diaz, 71 AD3d 947, 948 [2010]). Since the defendant failed to establish a reasonable excuse for his failure to oppose the plaintiffs motion, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant’s motion (see Hasanji v Hasanji, 121 AD3d 753 [2014]; Diaz v Diaz, 71 AD3d at 948). In light of the defendant’s failure to establish a reasonable excuse, we need not address the defendant’s contentions regarding whether he had a potentially meritorious opposition to the plaintiffs motion (see Diaz v Diaz, 71 AD3d at 948).

Balkin, J.P., Hall, Miller and Duffy, JJ., concur.

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Bluebook (online)

127 A.D.3d 943, 9 N.Y.S.3d 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnally-v-mcnally-nyappdiv-2015.

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