Opinion
November 23, 1987
Appeal from the Supreme Court, Queens County (Glass J.).
Ordered that the orders are affirmed, with one bill of costs.
Although a liberal policy is followed by this State's courts with respect to vacating defaults in matrimonial actions (Candeloro v. Candeloro, 133 A.D.2d 731; Breen v. Breen, 99 A.D.2d 539, 540), the trial court has the discretion to condition the vacating of a default upon the payment of an appropriate monetary sanction (see, Gabrelian v. Gabrelian, 108 A.D.2d 445, 447-448, appeal dismissed 66 N.Y.2d 741; Breen v. Breen, supra; Marshall v Marshall, 65 A.D.2d 551). We conclude that the sanction imposed herein as a condition of relieving the husband of his default was an appropriate exercise of the trial court's discretion. Our review of the record reveals that the defense counsel failed to submit an affidavit of his actual engagement in a trial of another matter on the date of the scheduled hearing in the instant matter. The allegations that defense counsel took certain steps at the last moment to advise the court of his inability to appear on the scheduled hearing date are not supported by the record on appeal and we do not find that the actions of the defense counsel, even if accepted as true, were sufficient to excuse his default in appearing at the hearing.
We further conclude that the order dated February 13, 1987 should be affirmed. Pursuant to the stipulation entered into by the parties and incorporated in a divorce judgment, the husband was to pay the wife $50 per week in alimony. Although a motion by the husband to modify this provision is pending before the trial court, the divorce judgment has not yet been altered by court order. Therefore, the husband is under a continuing obligation to make the required alimony payments until further order of the court. Thompson, J.P., Niehoff, Eiber, Sullivan and Harwood, JJ., concur.