Rapp v. Rapp

Appellate Division of the Supreme Court of New York

Rapp v. Rapp

59 A.D.2d 737, 398 N.Y.S.2d 572, 1977 N.Y. App. Div. LEXIS 13738

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

DecidedOctober 17, 1977

StatusPublished

Cited by3 cases

This text of 59 A.D.2d 737 (Rapp v. Rapp) 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

Rapp v. Rapp, 59 A.D.2d 737, 398 N.Y.S.2d 572, 1977 N.Y. App. Div. LEXIS 13738 (N.Y. Ct. App. 1977).

Pincite

Opinion

In an action in which a judgment of divorce was entered in favor of the plaintiff husband upon defendant’s default, defendant appeals from an order of the Supreme Court, Suffolk County, dated March 11, 1977, which denied her motion to vacate the said judgment. Order affirmed, without costs or disbursements. There was no improvident exercise of discretion by Special Term in refusing to vacate the appellant’s default; appellant failed to establish that "the default * * * was not willful” (see Milner v Milner, 281 App Div 666), or that her nonappearance was an "honest mistake” (see Cachinski v Cachinski, 278 App Div 769), or that the "interests of justice” compel vacatur (see Pollick v Pollick, 281 App Div 765). Furthermore, the plaintiff husband’s death, occurring less than two days after the judgment of divorce, bars further prosecution of the action in the event of a reversal and would be tantamount to granting appellant summary judgment dismissing the action for divorce. We note, further, as did Special Term, that the parties’ infant’s rights in any potential death action can be amply protected by the administratrix, who is also the guardian of the infant’s property. Titone, J. P., Hawkins, Suozzi and Mollen, JJ., concur.

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In an action in which a judgment of divorce was entered in favor of the plaintiff husband upon defendant’s default, defendant appeals from an order of the Supreme Court, Suffolk County, dated March 11, 1977, which denied her motion to vacate the said judgment. Order affirmed, without costs or disbursements. There was no improvident exercise of discretion by Special Term in refusing to vacate the appellant’s default; appellant failed to establish that "the default * * * was not willful” (see Milner v Milner, 281 App Div 666), or that her nonappearance was an "honest mistake” (see Cachinski v Cachinski, 278 App Div 769), or that the "interests of justice” compel vacatur (see Pollick v Pollick, 281 App Div 765). Furthermore, the plaintiff husband’s death, occurring less than two days after the judgment of divorce, bars further prosecution of the action in the event of a reversal and would be tantamount to granting appellant summary judgment dismissing the action for divorce. We note, further, as did Special Term, that the parties’ infant’s rights in any potential death action can be amply protected by the administratrix, who is also the guardian of the infant’s property. Titone, J. P., Hawkins, Suozzi and Mollen, JJ., concur.

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Bluebook (online)

59 A.D.2d 737, 398 N.Y.S.2d 572, 1977 N.Y. App. Div. LEXIS 13738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rapp-v-rapp-nyappdiv-1977.

Opinion

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