Opinion
2014-10816 Index No. 40945/09.
02-17-2016
Elizabeth CELESIA, respondent, v. Dean B. CELESIA, appellant.
Ira Bierman, Jericho, N.Y., for appellant. Elizabeth Kelly, named herein as Elizabeth Celesia, Islip, N.Y., respondent pro se.
Ira Bierman, Jericho, N.Y., for appellant.
Elizabeth Kelly, named herein as Elizabeth Celesia, Islip, N.Y., respondent pro se.
Opinion
Appeal from an order of the Supreme Court, Suffolk County (Bivona, J.), dated September 30, 2013. The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate a judgment of divorce of that court entered October 4, 2011, upon his failure to appear or answer the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action for a divorce and ancillary relief, the Supreme Court entered a judgment of divorce on October 4, 2011, upon the defendant's failure to appear or answer the complaint. Thereafter, the defendant moved, inter alia, pursuant to CPLR 5015(a) to vacate the judgment of divorce, and the court denied that branch of his motion. The defendant appeals.
“Although the courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions, it is still incumbent upon a defendant seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) to demonstrate a reasonable excuse for his or her default and the existence of a potentially meritorious defense” (Farhadi v. Qureshi, 105 A.D.3d 990, 991, 964 N.Y.S.2d 214; see Dervisevic v. Dervisevic, 89 A.D.3d 785, 786, 932 N.Y.S.2d 347). In this case, the defendant failed to demonstrate a reasonable excuse for his default in appearing or answering the complaint (see Hwang v. Tam, 72 A.D.3d 741, 742, 898 N.Y.S.2d 474; Cuzzo v. Cuzzo, 65 A.D.3d 1274, 885 N.Y.S.2d 619). The defendant also failed to meet his burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff which could justify vacatur of the judgment of divorce pursuant to CPLR 5015(a)(3) (see Scheu v. Fan Ru Tseng, 72 A.D.3d 930, 898 N.Y.S.2d 502; Vogelgesang v. Vogelgesang, 71 A.D.3d 1131, 898 N.Y.S.2d 211; Tornheim v. Tornheim, 309 A.D.2d 923, 766 N.Y.S.2d 376). Moreover, under the circumstances of this case, vacatur of the judgment was not warranted in the interest of “substantial justice” (Woodson v. Mendon Leasing Corp. 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the judgment of divorce entered upon his failure to appear or answer the complaint (see Farhadi v. Qureshi, 105 A.D.3d at 990, 964 N.Y.S.2d 214; Seifried v. Seifried, 296 A.D.2d 398, 745 N.Y.S.2d 445; Raso v. Raso, 288 A.D.2d 364, 365, 733 N.Y.S.2d 636).