Lins
v.
Lins

Appellate Division of the Supreme Court of New York, First DepartmentDec 1, 1983
98 A.D.2d 608 (N.Y. App. Div. 1983)

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December 1, 1983


Order, Supreme Court, New York County (Callahan, J.), entered January 27, 1983, which, inter alia, granted defendant's motion to vacate the default judgment of divorce entered against her on March 10, 1982, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, the motion denied and the judgment of divorce reinstated. While courts have adopted a more liberal attitude in vacating defaults in matrimonial actions (see, e.g., Daly v. Daly, 74 A.D.2d 814; Levy v. Levy, 67 A.D.2d 998; Hewlett v. Hewlett, 63 A.D.2d 977; Hegarty v. Hegarty, 48 A.D.2d 891), "it is still incumbent upon the moving party to show a reasonable excuse for the default and the existence of a meritorious defense" ( Gorman v. Gorman, 92 A.D.2d 709, 710). In her moving papers defendant failed to make any showing whatsoever with respect to either requirement. Nor did plaintiff, as defendant contends, practice any fraud or deception upon the court in moving for the default judgment. He properly advised the court of the existence of the Rockland County action and of the dormancy of that proceeding. In such circumstances it was an abuse of discretion to vacate defendant's default.

Concur — Sullivan, J.P., Ross, Carro, Asch and Bloom, JJ.