Opinion
11-30-2016
Lisa McNAMARA, respondent, v. Robert McNAMARA, appellant.
Annette G. Hasapidis, South Salem, N.Y., for appellant. Harry Tilis, Bohemia, N.Y., for respondent.
Annette G. Hasapidis, South Salem, N.Y., for appellant.
Harry Tilis, Bohemia, N.Y., for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of divorce of the Supreme Court, Suffolk County (Carol MacKenzie, J.), dated October 10, 2014. The judgment, upon the defendant's failure to appear for a trial on ancillary economic issues, upon a decision of that court dated March 31, 2014, made after the trial, and upon an order of that court dated July 7, 2014, denying the defendant's motion, inter alia, pursuant to CPLR 5015(a) to vacate his default and to vacate stated portions of the decision, among other things, equitably distributed the marital property and awarded the plaintiff child support.
ORDERED that the judgment is affirmed, with costs.
“Although this Court has 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” (Dervisevic v. Dervisevic, 89 A.D.3d 785, 785, 932 N.Y.S.2d 347 ; see Capurso v. Capurso, 134 A.D.3d 974, 975–976, 24 N.Y.S.3d 78 ; Farhadi v. Qureshi, 105 A.D.3d 990, 991, 964 N.Y.S.2d 214 ). The determination of what constitutes a “reasonable excuse” lies within the sound discretion of the Supreme Court (see Capurso v. Capurso, 134 A.D.3d at 976, 24 N.Y.S.3d 78 ; Eastern Sav. Bank, FSB v. Charles, 103 A.D.3d 683, 684, 959 N.Y.S.2d 704 ; Rivera v. Komor, 69 A.D.3d 833, 892 N.Y.S.2d 769 ).
Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default in appearing on the scheduled trial date. The defendant's unsubstantiated excuse that he was suffering from acid reflux the night before the trial was not reasonable under the circumstances of this case (see Capurso v. Capurso, 134 A.D.3d at 976, 24 N.Y.S.3d 78 ; Dimopoulos
v. Caposella, 118 A.D.3d 739, 740, 987 N.Y.S.2d 434 ; Tobin v. Perlmutter, 288 A.D.2d 210, 732 N.Y.S.2d 576 ; Campbell v. Dutton Stor. Distrib. Co., 240 A.D.2d 690, 691, 660 N.Y.S.2d 34 ). Since the defendant failed to demonstrate a reasonable excuse for his default, we need not determine whether he had a potentially meritorious defense (see Mathew v. Mathew, 137 A.D.3d 1086, 1087, 28 N.Y.S.3d 695 ; Sganga v. Sganga, 95 A.D.3d 872, 873, 942 N.Y.S.2d 886 ; Diaz v. Diaz, 71 A.D.3d 947, 948, 896 N.Y.S.2d 891 ).
The Supreme Court also properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(3) to vacate his default in appearing on the scheduled trial date based upon his allegation that the plaintiff presented false testimony. Since such a claim amounts to an allegation of intrinsic fraud, the defendant was required to establish both a reasonable excuse for the default and a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v. Karlis, 138 A.D.3d 915, 916, 30 N.Y.S.3d 228 ; Morel v. Clacherty, 186 A.D.2d 638, 639, 589 N.Y.S.2d 778 ; Averill v. Averill, 129 A.D.2d 603, 604, 514 N.Y.S.2d 98 ; see also Matter of Lockett v. Juviler, 65 N.Y.2d 182, 186, 490 N.Y.S.2d 764, 480 N.E.2d 378 ). Since the defendant failed to demonstrate a reasonable excuse for his default, we need not determine whether he had a potentially meritorious defense (see Mathew v. Mathew, 137 A.D.3d at 1087, 28 N.Y.S.3d 695 ; Sganga v. Sganga, 95 A.D.3d at 873, 942 N.Y.S.2d 886 ; Diaz v. Diaz, 71 A.D.3d at 948, 896 N.Y.S.2d 891 ).
The defendant's remaining contention, that the Supreme Court erred in denying that branch of his motion which was to vacate certain portions of the decision dated March 31, 2014, is not reviewable by this Court, since no appeal lies from an order denying a motion to vacate a decision (see Matter of Colonial Penn Ins. Co. v. Culley, 144 A.D.2d 363, 534 N.Y.S.2d 876 ).