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Simak v. Simak

121 A.D.3d 1090 Court N.Y. App. Div. Decision date 2014-10-29 English

Judges Mastro, J.E, Sgroi, Cohen and Miller, JJ., concur.

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p. 1090
Lynn Simak, Appellant, v Craig Simak, Respondent.
[995 NYS2d 209]

In an action for a divorce and ancillary relief in which the complaint was dismissed based on the plaintiffs failure to appear at the trial, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marón, J.), entered June 3, 2013, which denied her motion, in effect, to vacate her default.

Ordered that the order is affirmed, with costs.

Although the courts of this State have adopted a liberal policy with respect to vacating defaults in matrimonial actions {see Lueders v Boma-Lueders, 85 AD3d 1130 , 1131 [2011]; Osman v Osman, 83 AD3d 1022 , 1023 [2011]; Viner v Viner, 291 AD2d 398 [2002]), it is nevertheless incumbent upon the defaulting party to establish a reasonable excuse for the default and a potentially meritorious position (see Sganga v Sganga, 95 AD3d 872 , 872-873 [2012]; Dervisevic v Dervisevic, 89 AD3d 785 , 786 [2011]). A motion to vacate a default is addressed to the trial

p. 1091
court’s sound discretion (see Vujanic v Petrovic, 103 AD3d 791 , 792 [2013]). Here, the plaintiffs attorney claimed that he suffered a vague and unspecified dental emergency that caused his failure to appear on the morning of the scheduled trial date of the action. However, he produced no documentation or specific information regarding the alleged emergency (cf. Osman v Osman, 83 AD3d at 1022 ; Zeltser v Sacerdote, 24 AD3d 541 , 542 [2005]), and he subsequently conceded that he had in fact appeared in court in another county to conference a different case on that very same morning. Accordingly, the Supreme Court did not improvidently exercise its discretion in finding that there was no reasonable excuse for the default.

Similarly, the plaintiff did not demonstrate a potentially meritorious action because she failed to submit an affidavit of merit or other evidence in support of her complaint, and her attempt to cure this deficiency in her reply papers was improper (see 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661 , 662 [2014]; Board of Mgrs. of Foundry at Washington Park Condominium v Foundry Dev. Co., Inc., 111 AD3d 776 , 777 [2013]; Sawyers v Troisi, 95 AD3d 1293 , 1294 [2012]). The parties’ remaining contentions are without merit. Accordingly, the plaintiffs motion, in effect, to vacate her default was properly denied.

Mastro, J.E, Sgroi, Cohen and Miller, JJ., concur.

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