Opinion
February 3, 1989
Appeal from the Supreme Court, Oneida County, Lynch, J.
Present — Dillon, P.J., Callahan, Denman, Green and Lawton, JJ.
Order unanimously reversed on the law without costs and defendant's motion granted. Memorandum: Special Term erred in denying defendant's motion to vacate a default judgment in an action to rescind a separation agreement incorporated but not merged in a preequitable distribution divorce decree. Defendant's failure to appear for trial was excusable. Moreover, it is apparent from the motion papers that there is merit to defendant's defense to plaintiff's request for alimony in the rescission action (see, Math v Math, 39 A.D.2d 583, affd 31 N.Y.2d 693; Moran v Moran, 81 A.D.2d 740, 741; Matter of Mammon v Mammon, 54 A.D.2d 762). Upon defendant's return to the United States in April 1989, the matter should be scheduled for trial and proceed forthwith.