Price v. Price

52 A.D.2d 800, 383 N.Y.S.2d 349, 1976 N.Y. App. Div. LEXIS 12598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1976
• Status: Published

Opinion

Order, Supreme Court, New York County, entered January 8, 1976, denying motion to relieve defendant husband from default in answering the complaint, is unanimously affirmed, without prejudice however to the right of defendant husband to renew his motion below to open the default and to serve an answer on a factual showing of a meritorious defense to the action. Respondent shall recover of appellant $40 costs and disbursements of this appeal. While no adequate excuse has been shown by the defendant husband for his default, this is a matrimonial action involving the likelihood of a final determination of the matrimonial status of the parties on default. "The fact that defendant has not sufficiently established an adequate excuse for [his] default does not mandate denial of [his] motion. 'It has repeatedly been held that the general rule in respect to opening defaults in ordinary actions is not to be applied so rigorously in a matrimonial action’ (Vanderhorst v Vanderhorst, 282 App Div 312, 314.).” (Revson v Revson, 33 AD2d 738.) Again in Munkacsi v Munkacsi (4 AD2d 854) this court said: "It is clear that the default in this case was not inadvertent. * * * In view of the fact that this action would finally determine the matrimonial status of the parties it should not be disposed of on default. We feel therefore that the default should be ppened”. However, the defendant husband must justify the opening of the default by a factual showing that he has a meritorious defense, which thus far he has not done. Concur—Murphy, J. P., Birns, Silverman, Nunez and Yesawich, JJ.