LAMARCO v. LAMARCO (2026)

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered June 10, 2019, the defendant appeals from an order of the Supreme Court, Suffolk County (John J. Leo, J.), dated April 9, 2024.  The order, insofar as appealed from, (1) in effect, upon reargument, adhered to a determination in an order of the same court dated July 13, 2023, denying the defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce, (2) denied the defendant's motion to stay enforcement of two money judgments of the same court, both entered May 3, 2023, and (3) granted the plaintiff's cross-motion for an award of attorney's fees to the extent of awarding her attorney's fees in the sum of $17,500.

ORDERED that the order dated April 9, 2024, is affirmed insofar as appealed from, with costs.

The parties were married in 1993.  In 2014, the plaintiff commenced this action for a divorce and ancillary relief.  The defendant failed to appear at an inquest held on December 13, 2018.  Following the inquest, a judgment of divorce was entered on June 10, 2019, and served on the defendant on July 9, 2019.  On July 6, 2020, the defendant moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce.  In an order dated July 9, 2020, the Supreme Court denied the defendant's motion without prejudice.  In September 2022, the defendant again moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce.  In an order dated July 13, 2023, the court, after a hearing, denied the defendant's motion.

In June 2023, the defendant moved to stay enforcement of two money judgments, both entered May 3, 2023, in favor of the plaintiff and against the defendant in the principal sums of $223,589 and $5,000, respectively.  In August 2023, the defendant moved, in effect, for leave to reargue his prior motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce.  The plaintiff opposed the defendant's motions and cross-moved for an award of attorney's fees.  In an order dated April 9, 2024, the Supreme Court, inter alia, in effect, upon reargument, adhered to the determination in the order dated July 13, 2023, denying the defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce, denied the defendant's motion to stay enforcement of the money judgments, and granted the plaintiff's cross-motion to the extent of awarding her attorney's fees in the sum of $17,500.  The defendant appeals.

As the Supreme Court reviewed the defendant's contentions on his motion, in effect, for leave to reargue, the court, in effect, granted reargument and, upon reargument, adhered to the prior determination (see 6901, LLC v. Caputo, 241 A.D.3d 461, 462, 241 N.Y.S.3d 99;  Matter of Government Empls. Ins. Co. v Bermeo, 230 A.D.3d 1141, 1142, 218 N.Y.S.3d 431).  Therefore, the portion of the order dated April 9, 2024, which was made, in effect, upon reargument is appealable.

The Supreme Court, in effect, upon reargument, properly adhered to the prior determination denying the defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of divorce.  “A motion to vacate a judgment pursuant to CPLR 5015(a)(1) on the ground of excusable default must be made within one year after service upon the moving party of a copy of the judgment, with notice of its entry” (Ashley v. Ashley, 139 A.D.3d 650, 651, 33 N.Y.S.3d 270;  see CPLR 5015[a][1] ).  “ ‘Although 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 judgment pursuant to CPLR 5015(a)(1) to demonstrate a reasonable excuse for his or her default and the existence of a potentially meritorious defense’ ” (Gallousis v. Gallousis, 219 A.D.3d 466, 466, 192 N.Y.S.3d 259, quoting Farhadi v. Qureshi, 105 A.D.3d 990, 991, 964 N.Y.S.2d 214).

Here, the defendant's motion was untimely since it was made in September 2022, more than one year after he was served with a copy of the judgment of divorce, together with notice of its entry (see CPLR 5015[a][1];  Dankenbrink v. Dankenbrink, 154 A.D.3d 809, 810, 62 N.Y.S.3d 194).  “While the Supreme Court has the inherent authority to vacate a judgment in the interest of justice even after the statutory one-year period has expired” (Diaz v. Wyckoff Hgts. Med. Ctr., 148 A.D.3d 778, 779, 49 N.Y.S.3d 149), here, the defendant failed to demonstrate a reasonable excuse for the more than two-year delay in moving to vacate the judgment of divorce (see Gootnick v. Gootnick, 241 A.D.3d 1292, 1293, 239 N.Y.S.3d 304;  Nanas v. Govas, 176 A.D.3d 956, 957, 108 N.Y.S.3d 353;  Dankenbrink v. Dankenbrink, 154 A.D.3d at 810, 62 N.Y.S.3d 194).  Since the defendant failed to proffer a reasonable excuse, this Court need not consider whether he demonstrated a potentially meritorious defense (see Gootnick v. Gootnick, 241 A.D.3d at 1293, 239 N.Y.S.3d 304;  Simpson v. Clough, 232 A.D.3d 645, 646, 221 N.Y.S.3d 193).

The Supreme Court also properly denied the defendant's motion to stay enforcement of the money judgments.  The defendant failed to proffer any basis to stay enforcement of the money judgments.

“The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court” (Blocker v. Blocker, 221 A.D.3d 768, 769, 200 N.Y.S.3d 383 [internal quotation marks omitted];  see Silvers v. Silvers, 197 A.D.3d 1195, 1199, 153 N.Y.S.3d 548).  “In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation” (Torkin v. Susac, 236 A.D.3d 1089, 1090, 230 N.Y.S.3d 635 [internal quotation marks omitted];  see Marchese v. Marchese, 185 A.D.3d 571, 576, 126 N.Y.S.3d 177).  Here, considering the financial circumstances of the parties and the circumstances of this case as a whole, the Supreme Court providently exercised its discretion in awarding the plaintiff attorney's fees in the sum of $17,500 (see Domestic Relations Law §§ 237[b];  238;  Tuchman v. Tuchman, 201 A.D.3d 993, 994, 157 N.Y.S.3d 775).

The parties' remaining contentions need not be reached in light of our determination.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.