Opinion
2002-02141
Submitted June 9, 2003.
September 15, 2003.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated December 6, 2001, as granted the plaintiff's motion for leave to enter judgment upon her default in answering and directed an inquest, and as denied those branches of her cross motion which were for leave to interpose a late answer and to consolidate the instant action with an action entitled Rosen v. Rosen, pending in the same court, under Suffolk County Index No. 3573/00.
Galasso Langione, LLP, Garden City, N.Y. (Peter J. Galasso of counsel), for appellant.
Long, Tuminello, Besso, Seligman, Quinlan Werner, Bay Shore, N.Y. (Kevin J. Werner of counsel) and Paul, Hastings, Janofsky Walker, LLP, New York, N.Y. (George L. Graff of counsel), for respondent (one brief filed).
Before: DAVID S. RITTER, J.P., SONDRA MILLER, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Although the courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions ( see Viner v. Viner, 291 A.D.2d 398; Louis v. Louis, 231 A.D.2d 612), it is still incumbent upon a defaulting defendant to establish a reasonable excuse for the default and a meritorious defense ( see Benjamin v. Benjamin, 249 A.D.2d 348; Kellerman v. Kellerman, 203 A.D.2d 533). Here, the defendant's failure to answer the complaint was willful ( see McGusty v. McGusty, 268 A.D.2d 508). In addition, the defendant failed to establish a meritorious defense ( see Benjamin v. Benjamin, supra; Anderson v. Anderson, 144 A.D.2d 512). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to enter a judgment on default and in denying that branch of the defendant's cross motion which was for leave to serve a late answer ( see CPLR 3012[d]; cf. Kolodny v. Kolodny, 286 A.D.2d 422; Kremer v. Kremer, 150 A.D.2d 759).
Contrary to the defendant's contentions on appeal, the affirmance of the denial of those branches of her cross motion which were for leave to interpose a late answer and to consolidate her matrimonial action against the plaintiff with the action at bar will not preclude her from seeking, inter alia, an award of maintenance and counsel fees. Rather, a defaulting party in a matrimonial action who appears at an inquest on ancillary issues such as equitable distribution and maintenance is entitled to fully participate therein by presenting his or her own witnesses and evidence, and cross-examining the other party's witnesses ( see Danois v. Danois, 154 A.D.2d 504; Meisl v. Meisl, 153 A.D.2d 839; Otto v. Otto, 150 A.D.2d 57, 69). Further, that a judgment has been entered upon a party's default in answering does not obviate the court's obligation to set forth the statutory factors considered in, inter alia, awarding maintenance and distributing marital property ( see Danois v. Danois, supra; Meisl v. Meisl, supra; Otto v. Otto supra).
RITTER, J.P., S. MILLER, LUCIANO and H. MILLER, JJ., concur.