JAMIESON v. ROMAN

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Supreme Court, Appellate Division, Second Department, New York.

Gordie JAMIESON, respondent, v. Joseph ROMAN, etc., appellant.

Decided: January 30, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, PETER B. SKELOS, and ROBERT J. LUNN, JJ. Paul H. Senzer, Garden City, N.Y., for appellant. Schlissel, Ostrow, Karabatos & Poepplein, PLLC, Garden City, N.Y. (Lisa R. Schoenfeld and A. James Temsamani of counsel), for respondent.

In an action for a divorce and ancillary relief, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated September 16, 2005, as denied those branches of his motion which were pursuant to CPLR 5015(a)(1) and 3012(d) to vacate his default in appearing or answering the complaint and to extend his time to serve an answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to extend the time to answer or to compel the acceptance of an untimely answer (see CPLR 5015[a][1];  Lipp v. Port Auth. of N.Y. & N.J., 34 A.D.3d 649, 824 N.Y.S.2d 671;  Ennis v. Lema, 305 A.D.2d 632, 633, 760 N.Y.S.2d 197).   While the courts have adopted a generally liberal policy of vacating defaults in matrimonial disputes, the movant is still obligated to make the requisite showing (see Rolston v. Rolston, 261 A.D.2d 377, 689 N.Y.S.2d 226;  Conner v. Conner, 240 A.D.2d 614, 659 N.Y.S.2d 296;  Bernholz v. Bernholz, 184 A.D.2d 542, 584 N.Y.S.2d 637), and “whether a particular judgment should be opened remains a matter of discretion” (Wayasamin v. Wayasamin, 167 A.D.2d 460, 462, 561 N.Y.S.2d 925).

 Here, the Supreme Court providently exercised its discretion in rejecting the defendant's proffered excuses that the parties were engaged in settlement negotiations and that his former Pennsylvania counsel failed to advise him to retain counsel in New York for an appearance in this action, in light of the defendant's lengthy delay in appearing even after he was served with the judgment of divorce (see Antoine v. Bee, 26 A.D.3d 306, 812 N.Y.S.2d 557;  Sobel v. Village of Scarsdale, 255 A.D.2d 500, 680 N.Y.S.2d 173;  Wayasamin v. Wayasamin, supra at 462, 561 N.Y.S.2d 925). Furthermore, the defendant did not contest the grounds for divorce (see Benjamin v. Benjamin, 249 A.D.2d 348, 349, 670 N.Y.S.2d 361;  Wayasamin v. Wayasamin, supra at 462, 561 N.Y.S.2d 925;  Anderson v. Anderson, 144 A.D.2d 512, 534 N.Y.S.2d 393).

The defendant's remaining contention is improperly raised for the first time on appeal.

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