REID v. McLEARY

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

Cecilia REID, appellant, v. Calvin McLEARY, respondent.

Decided: April 24, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER and HOWARD MILLER, JJ. David B. Calender, Flushing, N.Y., for appellant. Donald H. Greener, New York, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Kings County (Huttner, J.), dated October 13, 1998, as granted that branch of the defendant's motion which was for summary judgment dismissing the first, second, third, and fourth causes of action in the complaint, upon her default in opposing the motion, and (2) so much of an order of the same court, dated November 18, 1998, as denied her motion, in effect, to vacate her default in opposing the defendant's prior motion.

ORDERED that the appeal from the order dated October 13, 1998, is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511;  Marquise Collection v. M.A.S. Textiles Corp., 239 A.D.2d 470, 657 N.Y.S.2d 207;  Matter of Mitcham v. Mitcham, 125 A.D.2d 473, 509 N.Y.S.2d 573);  and it is further,

ORDERED that the order dated November 18, 1998, is affirmed insofar as appealed from;  and it is further,

ORDERED that the defendant is awarded one bill of costs.

 The defendant's motion to dismiss the first four causes of action was granted upon the plaintiff's failure to appear or to submit opposition papers.   In order to prevail on her subsequent motion to vacate her default, the plaintiff was required to demonstrate a reasonable excuse and that the subject causes of action were meritorious (see, Correa v. Ahn, 205 A.D.2d 575, 613 N.Y.S.2d 241).

The explanation offered by the plaintiff's attorney for his failure to timely oppose the defendant's motion did not provide a reasonable excuse for the default (see, Farraj v. Otsego Mut. Fire Ins. Co., 227 A.D.2d 585, 643 N.Y.S.2d 398;  Correa v. Ahn, supra).   Furthermore, the plaintiff did not establish that the subject causes of action were meritorious since she sought, in essence, to enforce an oral agreement that was void as against public policy (see, Lowe v. Quinn, 27 N.Y.2d 397, 400, 318 N.Y.S.2d 467, 267 N.E.2d 251).

 The plaintiff alleged in the complaint that the defendant, who was then married, agreed to marry her after he obtained a divorce and to share his assets with her in exchange for certain domestic services.   After entering into the alleged agreement, the parties lived together for eight years, and the plaintiff did not dispute that the relationship involved sexual relations.   No cause of action exists to enforce an agreement the main objective of which is to dissolve a marriage and to facilitate a divorce (see, Lowe v. Quinn, supra;  Paulus v. Kuchler, 214 A.D.2d 608, 625 N.Y.S.2d 81;  Pfeiff v. Kelly, 213 A.D.2d 916, 623 N.Y.S.2d 965;  Rose v. Elias, 177 A.D.2d 415, 576 N.Y.S.2d 257).   Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate her default.

MEMORANDUM BY THE COURT.

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