Opinion
609 CA 19-01062
12-23-2020
Yolonda G. PERONI, Plaintiff-Respondent, v. David A. PERONI, Defendant-Appellant.
TIMOTHY A. BENEDICT, ROME, FOR DEFENDANT-APPELLANT. COHEN & COHEN, UTICA (RICHARD A. COHEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
TIMOTHY A. BENEDICT, ROME, FOR DEFENDANT-APPELLANT.
COHEN & COHEN, UTICA (RICHARD A. COHEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff and defendant were married in 2000 and, in May 2017, plaintiff commenced this divorce action. The parties negotiated the distribution of their property and reached a settlement, which resulted in a separation agreement. Pursuant to that agreement, the parties agreed, inter alia, that plaintiff's pension was her separate property and that defendant's retirement account was his separate property. The matter then proceeded as an expedited uncontested divorce action, and a judgment of divorce was entered upon defendant's default. The separation agreement was incorporated but not merged into the judgment of divorce. Thereafter, defendant moved to, inter alia, vacate the default judgment of divorce and those portions of the separation agreement addressing the pension and retirement accounts and sought to have those accounts distributed pursuant to the Majauskas formula (see Majauskas v. Majauskas , 61 N.Y.2d 481, 489-491, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). Defendant now appeals from the order denying that motion, and we affirm.
Defendant initially contends that Supreme Court erred in denying his motion insofar as it sought to set aside the provisions of the separation agreement addressing the pension and retirement accounts because those provisions are manifestly unfair or the product of fraud or overreach by plaintiff. We reject that contention. Where, as here, a "separation agreement is incorporated but not merged into the divorce judgment, vacatur of the divorce judgment [would have] no effect on the enforceability of the agreement; the agreement survives as a separate and enforceable contract" ( Kellman v. Kellman , 162 A.D.2d 958, 958, 559 N.Y.S.2d 49 [4th Dept. 1990] ; see Bryant v. Carty , 118 A.D.3d 1459, 1459, 989 N.Y.S.2d 200 [4th Dept. 2014] ; see also Marshall v. Marshall , 124 A.D.3d 1314, 1317, 1 N.Y.S.3d 622 [4th Dept. 2015] ). Thus, in order to set aside the separation agreement, defendant was required to commence a plenary action or assert an affirmative defense or counterclaim, which he did not do; "such relief cannot be obtained on motion" ( Gaines v. Gaines , 188 A.D.2d 1048, 1048, 592 N.Y.S.2d 204 [4th Dept. 1992] ; see Christian v. Christian , 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ; Bryant , 118 A.D.3d at 1459, 989 N.Y.S.2d 200 ).
We reject defendant's further contention that the court erred in denying the motion insofar as it sought to vacate the judgment of divorce pursuant to CPLR 5015 (a) (1). Although the courts have adopted a "liberal policy with respect to vacating default judgments in matrimonial actions" ( DePerno v. DePerno , 158 A.D.3d 1313, 1313, 68 N.Y.S.3d 377 [4th Dept. 2018] [internal quotation marks omitted] ), a party seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense (see DePerno , 158 A.D.3d at 1313, 68 N.Y.S.3d 377 ; see also Ward v. Ward , 172 A.D.3d 955, 956, 100 N.Y.S.3d 276 [2d Dept. 2019] ). Moreover, "it is well settled that [t]he determination of whether ... to vacate a default ... is generally left to the sound discretion of the court" ( Mills v. Mills , 111 A.D.3d 1306, 1307, 974 N.Y.S.2d 717 [4th Dept. 2013], lv dismissed 22 N.Y.3d 1167, 985 N.Y.S.2d 468, 8 N.E.3d 844 [2014] [internal quotation marks omitted] ).
We conclude that defendant failed to establish a reasonable excuse for his default. To the extent that he contends that the side effects of certain medications impaired his judgment and constituted a reasonable excuse, we conclude that he failed to submit any evidence to support his conclusory allegation (see Calle v. Calle , 28 A.D.3d 1209, 1209, 812 N.Y.S.2d 925 [4th Dept. 2006] ; see also Dankenbrink v. Dankenbrink , 154 A.D.3d 809, 810, 62 N.Y.S.3d 194 [2d Dept. 2017] ; Ruparelia v. Ruparelia , 136 A.D.3d 1266, 1269, 26 N.Y.S.3d 394 [3d Dept. 2016] ). Moreover, the fact that defendant chose not to retain an attorney when he had sufficient time in which to do so does not establish a reasonable excuse for his default (see Abbott v. Crown Mill Restoration Dev., LLC , 109 A.D.3d 1097, 1099, 972 N.Y.S.2d 117 [4th Dept. 2013] ; Mauro v. Mauro , 148 A.D.2d 684, 685, 539 N.Y.S.2d 432 [2d Dept. 1989] ; cf. Bird v. Bird , 77 A.D.3d 1382, 1383, 908 N.Y.S.2d 317 [4th Dept. 2010] ). Because defendant failed to establish a reasonable excuse for the default, we need not determine whether he had a potentially meritorious defense (see Abbott , 109 A.D.3d at 1100, 972 N.Y.S.2d 117 ).