Opinion
15604 Index No. 300025/17 Case No. 2021–03141
05-19-2022
James RICHARD, Plaintiff–Appellant, v. Laurie BUCK, Defendant–Respondent.
Polly N. Passonneau, P.C., New York (Polly N. Passonneau of counsel), for appellant. Segal & Greenberg LLP, New York (Philip C. Segal of counsel), for respondent.
Polly N. Passonneau, P.C., New York (Polly N. Passonneau of counsel), for appellant.
Segal & Greenberg LLP, New York (Philip C. Segal of counsel), for respondent.
Kapnick, J.P., Webber, Friedman, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered April 20, 2021, which denied plaintiff husband's motion to vacate the judgment of divorce, unanimously reversed, on the law, without costs, the motion granted, the judgment vacated, and the matter remanded for further proceedings.
Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. Indeed, at the conclusion of the inquest, the court explicitly acknowledged that the husband's absence was likely attributable to his mental health. Thus, before entering judgment upon the husband's default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203 ; e.g. Brewster v. John Hancock Mut. Life Ins. Co., 280 A.D.2d 300, 300, 720 N.Y.S.2d 462 [1st Dept. 2001] ; Matter of Fischer v. Fischer, 21 A.D.3d 554, 555, 800 N.Y.S.2d 586 [2d Dept. 2005] ; Sarfaty v. Sarfaty, 83 A.D.2d 748, 749, 443 N.Y.S.2d 506 [4th Dept. 1981] ; see also Anonymous v. Anonymous, 256 A.D.2d 90, 91, 681 N.Y.S.2d 494 [1st Dept. 1998] ). Because there was no inquiry, the judgment must be vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband's current capacity ( Sarfaty, 83 A.D.2d at 749, 443 N.Y.S.2d 506 ; see also Oneida Natl. Bank & Trust Co. of Cent. N.Y. v. Unczur, 37 A.D.2d 480, 483–484, 326 N.Y.S.2d 458 [4th Dept. 1971] ).
As an alternate reason for reversal and in light of the liberal approach to vacating defaults in matrimonial proceedings, we find that the husband sufficiently demonstrated a reasonable excuse for his default and a potentially meritorious defense to the equitable distribution award and thus, vacatur is also warranted under CPLR 5015(a)(1).
We have considered the husband's remaining arguments, including those relating to due process and the court's alleged failure to set forth statutory factors in making the equitable distribution award, and find them unavailing.
The Decision and Order of this Court entered herein on is March 29, 2022 hereby recalled and vacated (see M–1464 decided simultaneously herewith).