KLEIN v. KLEIN

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

Pauline KLEIN, Appellant, v. Saul I. KLEIN, Respondent.

Decided: May 27, 1997

Before MANGANO, P.J., and RITTER, SULLIVAN, ALTMAN and McGINITY, JJ. Stone & Brantman, Garden City, (Burton Stone, of counsel), for appellant.

In a matrimonial action in which the parties were divorced by judgment dated August 25, 1981, the plaintiff former wife appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated November 8, 1995, which granted the defendant former husband's motion to vacate a judgment of the same court, entered October 19, 1994, upon his default in making payments of arrears pursuant to the parties' stipulation of settlement.

ORDERED that the order is reversed, on the law, with costs, and the former husband's motion to vacate the default judgment is denied.

 A party attempting to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense (see, Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919).   The defendant's proffered excuse that he was never served with notice of the default judgment until after entry thereof is unavailing.   Pursuant to the parties' stipulation of settlement dated October 2, 1991, the plaintiff was entitled to have judgment entered against the defendant without notice under the circumstances which existed in this case.

 Moreover, since the stipulation did not afford the defendant any defenses in the event of a default, his unsubstantiated claim of a sudden reversal in his financial situation does not constitute a meritorious defense.

MEMORANDUM BY THE COURT.

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