Telly v. Telly

Appellate Division of the Supreme Court of New York

Telly v. Telly

242 A.D.2d 928, 662 N.Y.S.2d 893, 1997 N.Y. App. Div. LEXIS 10513

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

DecidedSeptember 30, 1997

StatusPublished

Cited by1 cases

This text of 242 A.D.2d 928 (Telly v. Telly) 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.

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Telly v. Telly, 242 A.D.2d 928, 662 N.Y.S.2d 893, 1997 N.Y. App. Div. LEXIS 10513 (N.Y. Ct. App. 1997).

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Opinion

Order unanimously reversed on the law with costs, motion granted and judgment vacated. Memorandum: Supreme Court erred in determining that it lacked authority to grant plaintiffs motion to vacate the judgment annulling the parties’ marriage because the motion is not based upon any of the grounds enumerated in CPLR 5015 (a). “A court has inherent power, not limited by statute, to relieve a party from a judgment or order entered on default” (Town of Greenburgh v Schroer, 55 AD2d 602; accord, Ruben v American & Foreign Ins. Co., 185 AD2d 63, 67). We conclude, in light of the “liberal policy with respect to vacating default judgments in matrimonial actions” (Schrader v Schrader, 152 AD2d 987, 987-988; see, Dunbar v Dunbar, 233 AD2d 922; Fayet v Fayet, 214 AD2d 534, 534-535; Anderson v Anderson, 144 AD2d 512, 513), that plaintiff is entitled to relief from the judgment. The proof submitted by plaintiff, a native of Albania, establishes [929]*929that her understanding of English is limited and that her consent to the entry of a default judgment was “not based upon an informed understanding of the consequences” (Mejia v Mejia, 82 AD2d 875; see, Cabbad v Melendez, 81 AD2d 626). Vacatur is further warranted on the ground that the record is devoid of proof supporting defendant’s allegations of fraud (see, Domestic Relations Law § 144). Absent such proof, “[t]he parties by themselves were without power permanently to fix or to alter their marital status or the scope of the obligations arising from the marriage relationship by consent, stipulation or their own conduct” (Querze v Querze, 290 NY 13, 18, mot to amend remittitur denied 290 NY 765, 926; see, Domestic Relations Law § 144; Weiman v Weiman, 295 NY 150, 154; Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 144, at 574-575). (Appeal from Order of Supreme Court, Chautauqua County, Ward, J.— Vacate Judgment.) Present—Green, J. P., Lawton, Wisner, Balio and Boehm, JJ.

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Order unanimously reversed on the law with costs, motion granted and judgment vacated. Memorandum: Supreme Court erred in determining that it lacked authority to grant plaintiffs motion to vacate the judgment annulling the parties’ marriage because the motion is not based upon any of the grounds enumerated in CPLR 5015 (a). “A court has inherent power, not limited by statute, to relieve a party from a judgment or order entered on default” (Town of Greenburgh v Schroer, 55 AD2d 602; accord, Ruben v American & Foreign Ins. Co., 185 AD2d 63, 67). We conclude, in light of the “liberal policy with respect to vacating default judgments in matrimonial actions” (Schrader v Schrader, 152 AD2d 987, 987-988; see, Dunbar v Dunbar, 233 AD2d 922; Fayet v Fayet, 214 AD2d 534, 534-535; Anderson v Anderson, 144 AD2d 512, 513), that plaintiff is entitled to relief from the judgment. The proof submitted by plaintiff, a native of Albania, establishes [929]*929that her understanding of English is limited and that her consent to the entry of a default judgment was “not based upon an informed understanding of the consequences” (Mejia v Mejia, 82 AD2d 875; see, Cabbad v Melendez, 81 AD2d 626). Vacatur is further warranted on the ground that the record is devoid of proof supporting defendant’s allegations of fraud (see, Domestic Relations Law § 144). Absent such proof, “[t]he parties by themselves were without power permanently to fix or to alter their marital status or the scope of the obligations arising from the marriage relationship by consent, stipulation or their own conduct” (Querze v Querze, 290 NY 13, 18, mot to amend remittitur denied 290 NY 765, 926; see, Domestic Relations Law § 144; Weiman v Weiman, 295 NY 150, 154; Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 144, at 574-575). (Appeal from Order of Supreme Court, Chautauqua County, Ward, J.— Vacate Judgment.) Present—Green, J. P., Lawton, Wisner, Balio and Boehm, JJ.

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242 A.D.2d 928, 662 N.Y.S.2d 893, 1997 N.Y. App. Div. LEXIS 10513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/telly-v-telly-nyappdiv-1997.

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