TELLY v. TELLY (1997)

 Supreme Court erred in determining that it lacked authority to grant plaintiff's motion to vacate the judgment annulling the parties' marriage because the motion is not based upon any of the grounds enumerated in CPLR 5015(a).  “A court has inherent power, not limited by statute, to relieve a party from a judgment or order entered on default” (Town of Greenburgh v. Schroer, 55 A.D.2d 602, 389 N.Y.S.2d 384;  accord, Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 67, 592 N.Y.S.2d 167).   We conclude, in light of the “liberal policy with respect to vacating default judgments in matrimonial actions” (Schrader v. Schrader, 152 A.D.2d 987, 987-988, 544 N.Y.S.2d 767;  see, Dunbar v. Dunbar, 233 A.D.2d 922, 649 N.Y.S.2d 753;  Fayet v. Fayet, 214 A.D.2d 534, 534-535, 625 N.Y.S.2d 55;  Anderson v. Anderson, 144 A.D.2d 512, 513, 534 N.Y.S.2d 393), that plaintiff is entitled to relief from the judgment.   The proof submitted by plaintiff, a native of Albania, establishes that her understanding of English is limited and that her consent to the entry of a default judgment was “not based upon an informed understanding of the consequences” (Mejia v. Mejia, 82 A.D.2d 875, 440 N.Y.S.2d 321;  see, Cabbad v. Melendez, 81 A.D.2d 626, 438 N.Y.S.2d 120).   Vacatur is further warranted on the ground that the record is devoid of proof supporting defendant's allegations of fraud (see, Domestic Relations Law § 144).   Absent such proof, “[t]he parties by themselves were without power permanently to fix or to alter their marital status or the scope of the obligations arising from the marriage relationship by consent, stipulation or their own conduct” (Querze v. Querze, 290 N.Y. 13, 18, 47 N.E.2d 423, mot to amend remittitur denied 290 N.Y. 765, 50 N.E.2d 102, 290 N.Y. 926, 50 N.E.2d 308;  see, Domestic Relations Law § 144;  Weiman v. Weiman, 295 N.Y. 150, 154, 65 N.E.2d 754;  Scheinkman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law § 144, at 574-575).

Order unanimously reversed on the law with costs, motion granted and judgment vacated.

MEMORANDUM: