Opinion
2013-05317, Index No. 20701/01.
04-15-2015
Patricia McNALLY, respondent, v. Edward McNALLY, appellant.
Jeffrey W. Waller, Huntington, N.Y. (Darla A. Filiberto of counsel), for appellant. Enza Cammarasana, Northport, N.Y., for respondent.
Jeffrey W. Waller, Huntington, N.Y. (Darla A. Filiberto of counsel), for appellant.
Enza Cammarasana, Northport, N.Y., for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Opinion
In a matrimonial action in which the parties were divorced by judgment dated November 15, 2005, the defendant appeals, as limited by his brief, from so much an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 26, 2013, as denied his motion, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Pines, J.), dated August 1, 2006, which granted the plaintiff's unopposed motion, inter alia, to hold him in contempt of court.
ORDERED that the order dated March 26, 2013, is affirmed insofar as appealed from, with costs.
To succeed on his motion, in effect, pursuant to CPLR 5015(a)(1) to vacate a prior order granting the plaintiff's unopposed motion, inter alia, to hold him in contempt of court, the defendant was required to establish both a reasonable excuse for his failure to oppose the plaintiff's motion and the existence of a potentially meritorious opposition to that motion (see Diaz v. Diaz, 71 A.D.3d 947, 948, 896 N.Y.S.2d 891 ). Since the defendant failed to establish a reasonable excuse for his failure to oppose the plaintiff's motion, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant's motion (see Hasanji v. Hasanji, 121 A.D.3d 753, 993 N.Y.S.2d 512 ; Diaz v. Diaz, 71 A.D.3d at 948, 896 N.Y.S.2d 891 ). In light of the defendant's failure to establish a reasonable excuse, we need not address the defendant's contentions regarding whether he had a potentially meritorious opposition to the plaintiff's motion (see Diaz v. Diaz, 71 A.D.3d at 948, 896 N.Y.S.2d 891 ).