Zherka v. Zherka

17 A.D.3d 668, 792 N.Y.S.2d 913, 2005 N.Y. App. Div. LEXIS 4380

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2005
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment dated January 26, 2001, entered upon the defendant’s default in appearing and answering, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated August 23, 2004, which denied his motion, inter alia, to vacate so much of the judgment as awarded equitable distribution transferring title to the former marital residence to the plaintiff.

Ordered that the order is affirmed, with costs.

Despite the liberal policy with respect to vacating default judgments in matrimonial actions (see Wong v Wong, 300 AD2d 473 [2002]; Salley v Salley, 258 AD2d 454 [1999]), a party seeking such relief must still establish both a reasonable excuse for the default and a meritorious defense (see McGusty v McGusty, 268 AD2d 508 [2000]; Baumer v Baumer, 268 AD2d 495, 496 [2000]). Here, the defendant, who was duly served with the summons and complaint and was thus aware of the action from its commencement, moved to vacate the judgment of divorce more than three years after it was entered. Since the defendant failed to establish any excuse for his default whatsoever, let alone a reasonable excuse, the Supreme Court providently exercised its discretion in denying the defendant’s motion (see Sommers v Sommers, 305 AD2d 662 [2003]; Donaghy v Donaghy, 294 AD2d 329 [2002]).

The defendant’s remaining contentions either need not be reached in light of our determination herein or do not require reversal. H. Miller, J.P., Ritter, Rivera and Spolzino, JJ., concur.