Sayagh v. Sayagh

205 A.D.2d 678, 614 N.Y.S.2d 312, 1994 N.Y. App. Div. LEXIS 6449

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated December 21, 1992, which denied his motion to vacate the judgment of divorce dated August 10, 1992, entered upon his default.

Ordered that the order is affirmed, without costs or disbursements.

"Although this court has adopted a liberal policy with respect to vacating default judgments in matrimonial actions (see, D’Alleva v D Alleva, 127 AD2d 732; Antonovich v Antono vich, 84 AD2d 799; Hegarty v Hegarty, 48 AD2d 891), the opening of a default is discretionary” (Black v Black, 141 AD2d 689).

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the husband’s motion to vacate the default judgment (see, Candeloro v Candeloro, 133 AD2d 731). The husband failed to establish a meritorious defense to the claim of constructive abandonment upon which the divorce was granted, and to present a reasonable excuse for his failure to answer the summons within 20 days of being served (see, Black v Black, 141 AD2d 689, supra). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.