FUCHS GOREN v. GOREN (2024)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Westchester County (Lewis J. Lubell, J.), dated April 7, 2022.  The order denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate so much of an order of the same court dated October 22, 2021, as granted that branch of the plaintiff's unopposed motion which was to authorize the sale of the marital residence.

ORDERED that the order dated April 7, 2022, is affirmed, with costs.

The plaintiff and the defendant were married in March 2005.  In March 2019, the plaintiff commenced this action for a divorce and ancillary relief.  In September 2021, the plaintiff moved, inter alia, to authorize the sale of the marital residence.  The defendant did not oppose the motion.  In an order dated October 22, 2021, the Supreme Court, among other things, granted that branch of the plaintiff's motion.

In February 2022, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of the order dated October 22, 2021, as granted that branch of the plaintiff's motion which was to authorize the sale of the marital residence.  In an order dated April 7, 2022, the Supreme Court denied that branch of the defendant's motion.  The defendant appeals.  We affirm.

“A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Moore v. Moore, 216 A.D.3d 938, 939, 191 N.Y.S.3d 55 [internal quotation marks omitted];  see CPLR 5015[a][1];  Melamed v. Adams & Co. Real Estate, LLC, 208 A.D.3d 867, 174 N.Y.S.3d 713).  Notably, “[a]lthough the courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions, it is still incumbent upon a defendant seeking to vacate a default ․ pursuant to CPLR 5015(a)(1) to demonstrate a reasonable excuse for his or her default [in opposing the motion] and the existence of a potentially meritorious [opposition to the motion]” (Ward v. Ward, 172 A.D.3d 955, 956, 100 N.Y.S.3d 276;  see Diaz v. Diaz, 71 A.D.3d 947, 948, 896 N.Y.S.2d 891).  “[A] conclusory and unsubstantiated claim of ill health should be rejected” (Moore v. Moore, 216 A.D.3d at 939, 191 N.Y.S.3d 55;  see Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d 428, 429, 901 N.Y.S.2d 178).  “The absence of a reasonable excuse for the default renders it unnecessary to determine whether the [movant] demonstrated the existence of a potentially meritorious [opposition to the motion]” (Cervini v. Cisco Gen. Constr., Inc., 123 A.D.3d 1077, 1077, 1 N.Y.S.3d 195 [internal quotation marks omitted];  see Diaz v. Diaz, 71 A.D.3d at 948, 896 N.Y.S.2d 891).

Here, in support of his motion, the defendant submitted an affidavit in which he averred, inter alia, that at the time of the plaintiff's September 2021 motion, among other things, to authorize the sale of the marital residence, the defendant was not represented by counsel and was experiencing mental and physical health issues.  Notably, the record is silent as to what, if any, efforts the defendant made to secure new counsel after his prior counsel was relieved in June 2021.  More importantly, the defendant failed to substantiate his claim that he had a mental illness that prevented him from responding to the plaintiff's motion.  Accordingly, the defendant failed to establish a reasonable excuse for his default (see Moore v. Moore, 216 A.D.3d at 939, 191 N.Y.S.3d 55;  Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d at 429, 901 N.Y.S.2d 178).

In light of our determination, we need not consider the parties’ remaining contentions.

CONNOLLY, J.P., CHRISTOPHER, GENOVESI and WARHIT, JJ., concur.