GAMBA v. GAMBA

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

Jeannette GAMBA, Respondent, v. Luis Alejandro GAMBA, Appellant.

Decided: September 21, 1998

Before O'BRIEN, J.P., and SULLIVAN, JOY and FRIEDMANN, JJ. Klein & Solomon, LLP, New York City (Jay B. Solomon, of counsel), for appellant. Barry Heettner (Sol Needle, New York City, of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment dated September 30, 1992, the defendant former husband appeals from an order of the Supreme Court, Kings County (Rigler, J.), dated January 15, 1998, which denied his motion to vacate an income execution and certain financial provisions set forth in the judgment.

ORDERED that the order is affirmed, with costs.

As the Supreme Court correctly determined, the former husband's unsubstantiated allegations that he did not read or understand the papers which he executed, and that he was served with an incomplete copy of the parties' judgment of divorce, are refuted by the documentary evidence in the record as well as by common sense and experience.   Accordingly, the court properly determined that the former husband failed to sustain his heavy burden of demonstrating that the judgment of divorce was procured through the alleged fraud and misconduct on the part of the former wife and her former counsel (see generally, Longa v. 17 Battery Place N. Assocs., 169 A.D.2d 520, 564 N.Y.S.2d 175;  Marine Midland Bank v. Hall, 74 A.D.2d 729, 425 N.Y.S.2d 693;  Wallace v. Wallace, 52 A.D.2d 945, 383 N.Y.S.2d 634;  Manufacturers & Traders Trust Co. v. Commercial Door & Hardware, 51 A.D.2d 362, 381 N.Y.S.2d 709).

MEMORANDUM BY THE COURT.

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