Opinion
2014-10-22
Iruka ANEKWE, respondent, v. Edwin OKOROAFOR, appellant.
Law Office of Joseph Y. Balisok, L.L.M. (Tax), P.C., Brooklyn, N.Y., for appellant. Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Lloyd C. Rosen of counsel), for respondent.
Law Office of Joseph Y. Balisok, L.L.M. (Tax), P.C., Brooklyn, N.Y., for appellant. Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Lloyd C. Rosen of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Maron, J.), entered May 21, 2013, as denied these branches of his motion which were pursuant to CPLR 5015(a)(1) to vacate his default in appearing at an inquest and, in effect, to restore the action to the trial calendar.
ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate his default in appearing at the inquest and, in effect, to restore the action to the trial calendar are granted.
The Supreme Court improvidently exercised its discretion in denying those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate his default in appearing at an inquest and, in effect, to restore the action to the trial calendar. Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, the courts of this State have adopted a liberal policy toward vacating defaults in matrimonial actions ( see Lueders v. Boma–Lueders, 85 A.D.3d 1130, 1131, 927 N.Y.S.2d 118; Osman v. Osman, 83 A.D.3d 1022, 1023, 922 N.Y.S.2d 449; Bird v. Bird, 77 A.D.3d 1382, 1382–1383, 908 N.Y.S.2d 317). In matrimonial actions, “the State's interest in the marital res and allied issues,” such as child support and custody, “favor[s] dispositions on the merits” (Adams v. Adams, 255 A.D.2d 535, 536, 680 N.Y.S.2d 663 [internal quotation marks omitted]; see Lueders v. Boma–Lueders, 85 A.D.3d at 1131, 927 N.Y.S.2d 118; Osman v. Osman, 83 A.D.3d at 1023, 922 N.Y.S.2d 449; Payne v. Payne, 4 A.D.3d 512, 513, 771 N.Y.S.2d 714).
Here, the defendant demonstrated a reasonable excuse for his failure to appear at the inquest. The record indicates that the defendant's mother died in Nigeria while this action was pending, that the defendant spent several weeks in Nigeria after his mother died, and that he promptly moved to vacate his default after he returned to the United States. While the defendant was not yet in Nigeria when the Supreme Court conducted the preliminary conference at which the inquest was scheduled, he was in Nigeria at the time that the subsequent inquest was conducted and, under the circumstances presented here, it is clear that the defendant's default was not willful, and that he did not intend to abandon his claims or defenses ( see Ito v. Ito, 73 A.D.3d 983, 984, 900 N.Y.S.2d 665). Furthermore, the defendant demonstrated a potentially meritorious defense in connection with all ancillary economic issues ( see Osman v. Osman, 83 A.D.3d at 1023, 922 N.Y.S.2d 449; Ito v. Ito, 73 A.D.3d at 984, 900 N.Y.S.2d 665; Viner v. Viner, 291 A.D.2d 398, 737 N.Y.S.2d 379).
The defendant's remaining contention has not been considered because it was improperly raised for the first time on appeal.