Opinion
2013-02-20
Branko VUJANIC, appellant, v. Ivana PETROVIC, respondent.
Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for appellant. Bodnar & Milone, LLP, White Plains, N.Y. (Pamela J. Jenson of counsel), for respondent.
Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for appellant. Bodnar & Milone, LLP, White Plains, N.Y. (Pamela J. Jenson of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SYLVIA HINDS–RADIX, JJ.
In an action for a divorce and ancillary relief, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Christopher, J.), dated November 4, 2011, which denied his motion to vacate an order of the same court dated July 8, 2011, granting the defendant's unopposed motion for an award of counsel fees in the sum of $150,000, and (2) an order of the same court, also dated November 4, 2011, which denied his motion to direct the defendant to turn over to him certain items of personal property.
ORDERED that the orders are affirmed, with costs.
To vacate his default in opposing the defendant's motion for counsel fees, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Herrera v. MTA Bus Co., 100 A.D.3d 962, 954 N.Y.S.2d 631;Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608;Rocco v. Family Foot Ctr., 94 A.D.3d 1077, 1079, 942 N.Y.S.2d 607;Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55). A motion to vacate a default is addressed to the sound discretion of the court ( see Kohn v. Kohn, 86 A.D.3d at 630, 928 N.Y.S.2d 55).
Here, the Supreme Court did not improvidently exercise its discretion in declining to accept the plaintiff's proffered excuse of law office failure, since it was not supported by a “ ‘detailed and credible’ explanation of the default” ( Kohn v. Kohn, 86 A.D.3d at 630, 928 N.Y.S.2d 55, quoting Remote Meter Tech. of N.Y., Inc. v. Aris Realty Corp., 83 A.D.3d 1030, 1032, 922 N.Y.S.2d 440;see Strunk v. Revenge Cab Corp., 98 A.D.3d 1029, 1030, 950 N.Y.S.2d 595;Infante v. Breslin Realty Dev. Corp., 95 A.D.3d at 1076–1077, 944 N.Y.S.2d 608). Furthermore, even if the court had accepted the excuse of law office failure, the plaintiff failed to set forth any basis for a finding that he had a potentially meritorious opposition to the motion. The plaintiff's motion papers did not address this prong of the required showing, and his motion was, therefore, properly denied on that ground alone ( cf. Herrera v. MTA Bus Co., 100 A.D.3d 962, 954 N.Y.S.2d 631;Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 790, 921 N.Y.S.2d 643;HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647).
The Supreme Court also properly denied the plaintiff's motion to direct the defendant to turn over to him certain items of personal property that were determined, in the judgment of divorce, to be his separate property. Those items are the subject of a restraining notice served by the defendant, pursuant to the post-judgment enforcement provisions of CPLR article 52, to enforce a money judgment against the plaintiff ( seeCPLR 5222; Rozzo v. Rozzo, 274 A.D.2d 53, 55, 712 N.Y.S.2d 137).