Rizzo v. Rizzo

50 A.D.2d 915, 377 N.Y.S.2d 575, 1975 N.Y. App. Div. LEXIS 11833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1975
• Status: Published

Opinion

— In a matrimonial action, defendant appeals from an order of the Supreme Court, Kings County, dated June 11, 1975, which denied his motion to vacate a judgment of divorce entered upon his default. Order modified, by adding thereto, after the provision that the motion is "denied”, the following, "except that (1) the motion is granted to the extent of reopening the question of alimony and directing a reassessment thereof, with leave to defendant to participate and offer evidence thereon, subject to the conditions (a) that the judgment remain in full force and effect unless and until vacated after reassessment and (b) that defendant comply fully with the said judgment in the interim; and (2) in the event that, after trial, alimony is fixed in a lesser amount, defendant shall be credited with the difference.” As so modified, order affirmed, without costs. Under the liberal policy of vacating defaults in matrimonial actions (Vanderhorst v Vanderhorst, 282 App ,Div 312; see, also, Harris v Harris, 35 AD2d 894; Krupinski v Krupinski, 20 AD2d 719), the circumstances at bar warrant the reopening of the judgment to the extent, and under the conditions, here indicated (see Schutzer v Berger, 40 AD2d 725; Kerr v Kerr, 6 AD2d 807; Sabbeth v Sabbeth, 146 NYS2d 722). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.