SALLEY v. SALLEY (1999)

In an action for a divorce and ancillary relief, the defendant mother appeals from (1) an order of the Supreme Court, Kings County (Platt, J.H.O.), dated March 24, 1998, which denied her motion to vacate a judgment of the same court dated March 11, 1997, entered upon her default in appearing at a pretrial conference, and (2) an order of the same court, dated July 8, 1998, which, inter alia, denied her motion to stay enforcement of the judgment of divorce.

ORDERED that the order dated March 24, 1998, is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing to be held with all convenient speed on the issue of whether the defendant proffered a reasonable excuse for failing to appear at the pretrial conference;  and it is further,

ORDERED that the order dated July 8, 1998, is affirmed, without costs or disbursements.

 Although a party attempting to vacate a judgment entered upon his or her default must establish both a reasonable excuse for the default and a meritorious defense (see, Sayagh v. Sayagh, 205 A.D.2d 678, 614 N.Y.S.2d 312;  Fennell v. Mason, 204 A.D.2d 599, 612 N.Y.S.2d 416), this rule is not “applied with equal rigor in matrimonial actions where the State's interest in the marital res and allied issues (such as child support and custody) have called forth a more liberal approach, favoring dispositions on the merits” (Shaw v. Shaw, 97 A.D.2d 403, 406, 467 N.Y.S.2d 231).  Considering the serious allegations of abuse made by the mother against the father, as well as possible law office failure, the court erred in denying the mother's motion to vacate her default in appearing at a pretrial conference without a hearing on whether she presented a reasonable excuse for her default (see, D'Alleva v. D'Alleva, 127 A.D.2d 732, 511 N.Y.S.2d 927).  Nevertheless, under the circumstances of this case, we decline to stay enforcement of the judgment and transfer custody of the child of the marriage to the mother.

The mother's remaining contentions are without merit.

MEMORANDUM BY THE COURT.