Walczak v. Walczak

177 A.D.2d 1045, 578 N.Y.S.2d 58, 1991 N.Y. App. Div. LEXIS 15847

Opinion

Order unanimously affirmed with costs. Memorandum: Generally, in matrimonial matters, the courts have adopted a liberal policy of vacating default judgments (see, Schrader v Schrader, 152 AD2d 987; Otto v Otto, 150 AD2d 57, 60; Black v Black, 141 AD2d 689; Antonovich v Antonovich, 84 AD2d 799). The vacatur of a default judgment, however, is discretionary with the court (see, Black v Black, supra, at 689; Candeloro v Candeloro, 133 AD2d 731) and it is still incumbent upon the moving defendant to proffer a reasonable excuse for the default and to demonstrate the existence of a meritorious defense (see, Schrader v Schrader, supra, at 988). In our view, defendant failed to meet his dual burden. Accordingly, under the circumstances of this case, the court’s denial of defendant’s motion to vacate the financial provisions of the default judgment of annulment constituted a proper exercise of discretion. (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Vacate Judgment.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.