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Genzone  v Genzone


2017 NY Slip 00148

January 11, 2017


Plaintiff appeals from a Supreme Court order, that granted those parts of the defendant’s motion (CPLR 5015 (a)(1) and 3012 (d) which upon the defendant’s default granted the plaintiff’s motion under CPLR 3124 and 3126. An inquest was ordered to examine equitable distribution, child custody and support, and to vacate certain portions of the decision made after the defendant’s default.

The order from 1/7/15 is modified, deleting portions of the defendant’s motion addressing vacating part of a previous order and amended decision which dealt with equitable distribution, attorney’s fees and substituting provision that denied those portions of the defendant’s motion. It is affirmed and the matter is remitted to the Supreme Court.

The plaintiff filed this action of  divorce in 2011. The defendant was properly served, but failed to appear, even after he was notified. He didn’t respond to discovery and didn’t respond to a motion to compel. The Supreme Court found that the plaintiff had established her right to a divorce and request for an inquest, which the defendant never appeared. The court issued a decision on 10/24/12 and another on 5/9/14 regarding equitable distribution, child custody and attorney’s fees. In June 2014 the defendant moved to vacate parts of the order. The plaintiff opposed, the court granted the defendant’s motion.

According to CPLR 5015 (a)(1) a party seeking to vacate a default must provide a good excuse for their default and a valid defense (National star Mtge. LLC v. McClean 140 AD3d 1131, 1132. However because this deals with a marriage and because of public policy concerns, the court favors the resolution of issues because of their special meaning (Alam v Alam 123 AD3d 1066, 1067; Fayet v Fayet 214 AD2d 534, 534-535. The court will use a liberal policy when considering vacating a default (Backhaus v Backhaus 128 AD3d 872-873; Osman v Osman 83 AD3d 1022, 1023.

In this case, the defendant completely disregarded the divorce proceeding despite numerous repeated reminders. They only excuse provided was the unsupported by any clear evidence (Anderson v Anderson 144  AD2d 512). Because there were children involved, the issue should not be resolved via a default action. Vacating the defendants default is only appropriate regarding issues related to child support and custody. As to the Supreme Court granting the defendant relief on other issues, the court didn’t exercise due care (Matter of Cummings v Rosoff 101 AD3d 713). The default should have remained regarding attorney’s fees and equitable relief.

Unfortunately, divorces often don’t go smoothly despite our best intentions. Some result in lengthy court battles, and some even file a divorce by publication when the other party cannot be found.

When a party files for divorce, both the courts and your spouse must be notified of your intent to file. After the initial divorce is filed, Domestic Relations Law requires that the other party respond within 20 days or they are considered to be in default.

When the summons and complaint are filed, an affidavit of service must be completed, and filed with the court within 180 days. If the affidavit is properly filed and the party does not respond, the petitioning party may file for a default judgment. In New York, this is sometimes called a “no signature required” divorce.

It is important to note that default judgments can be vacated. Generally, courts prefer to settle cases on their own merits, rather than enter a default judgment. In order to remove a default judgment, the party must show that the failure to answer was due to excusable neglect, mistake, fraud or inadvertence.

If you have a legal issue, it is important to speak with a qualified lawyer from Stephen Bilkis and Associates. They have offices in Manhattan, Staten Island, the Bronx, Brooklyn, Queens, Nassau County, Suffolk County and Westchester County. Call them today at 1-800-NYNYLAW.

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