Jo-Ann Venturella-Ferretti, appellant, v. James Ferretti, respondent. (2010)

Submitted-May 11, 2010

DECISION & ORDER

In an action, inter alia, to set aside a stipulation of settlement which was incorporated but not merged into the parties' judgment of divorce, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 21, 2009, which denied her motion for leave to enter a default judgment upon the defendant's failure to appear at certain court conferences.

ORDERED that the order is affirmed, without costs or disbursements.

Although all allegations contained in the complaint were admitted based upon the defendant's default (see Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728;  McClelland v. Climax Hosiery Mills, 252 N.Y. 347), the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination (see CPLR 3215[b], [e];  Matter of Dyno v. Rose, 260 A.D.2d 694, 698;  Green v. Dolphy Constr.   Co., 187 A.D.2d 635;  Silberstein v Presbyterian Hosp. in City of N.Y., 96 A.D.2d 1096;  Wine Antiques v St. Paul Fire & Mar. Ins. Co., 40 A.D.2d 657, affd 34 N.Y.2d 781).  “A plaintiff's right to recover upon a defendant's default in answering is governed by CPLR 3215 ․ which requires that the plaintiff state a viable cause of action” (Fappiano v. City of New York, 5 AD3d 627, 628).  “ ‘Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default’ ” (Cardo v Board of Mgrs. Jefferson Vil. Condo 3, 29 AD3d 930, 832, quoting Green v. Dolphy Constr.   Co., 187 A.D.2d at 636;  see Cree v. Cree, 124 A.D.2d 538, 541).

The Supreme Court correctly denied the plaintiff's motion for leave to enter a default judgment, since the plaintiff failed to state valid causes of action warranting the vacatur of the parties' stipulation of settlement.

The plaintiff's remaining contentions are without merit.

RIVERA, J.P., FLORIO, ANGIOLILLO and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court