Opinion
803 CA 01-01328
July 3, 2002.
Appeal from a judgment of Supreme Court, Cattaraugus County (Nenno, J.), entered April 13, 2000, granting a divorce in favor of plaintiff.
ADDELMAN MARSZALKOWSKI, P.C., BUFFALO (DAVID R. ADDELMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
Before: HAYES, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
In this action for divorce, plaintiff moved to compel defendant to comply with her discovery demands and to preclude him from participating in the financial aspects of the action based on his noncompliance. After ordering defendant to comply with those demands and defendant's failure to do so, Supreme Court issued an order and judgment that, inter alia, precluded defendant from participating in the financial aspects of the action and directed that all issues relevant to defendant's statement of net worth be resolved in favor of plaintiff ( see CPLR 3126). Defendant appeals from a judgment that, inter alia, denied his motion pursuant to CPLR 5015 (a)(1) to vacate "the finding of default." We conclude that the court properly denied defendant's motion, but should have done so without considering the merits of the motion. "[W]here the default is predicated upon CPLR 3126, an appeal of that order or judgment is the proper and sole remedy for the defaulting party" ( Pinapati v. Pagadala, 244 A.D.2d 676, 677; see Miller v. Lanzisera, 273 A.D.2d 866, 868, appeal dismissed 95 N.Y.2d 887, rearg denied 96 N.Y.2d 731; Tony's Ornamental Iron Works v. National Bldg. Restoration Corp., 237 A.D.2d 909, 909). Defendant was on notice of plaintiff's motion pursuant to CPLR 3126 to compel and preclude, and thus his sole remedy with respect to the order and judgment granting plaintiff's motion was a direct appeal therefrom. In any event, even assuming, arguendo, that CPLR 5015 (a)(1) applies, we conclude that the motion of defendant to vacate the preclusion order and judgment was properly denied because he failed to establish a reasonable excuse for the default and a meritorious defense ( see Koski v. Ryder Truck, 244 A.D.2d 872, 872-873; Farrar v. Archer, 125 A.D.2d 953, 953-954, lv dismissed 69 N.Y.2d 1038).
We reject defendant's contention that the oral stipulation resolving certain financial issues of the parties was invalid. Defendant signed an "affidavit of appearance and adoption of oral stipulation" in which he acknowledged that he was represented by counsel and that the terms of the stipulation were fully explained to him and understood by him. He acknowledged that he freely and voluntarily agreed to the terms of the oral stipulation with the advice of counsel and "without force, fraud or duress." There is no evidence in the record to support defendant's contention that the oral stipulation does not comply with Domestic Relations Law § 236 (B)(3) ( see generally Matisoff v. Dobi, 90 N.Y.2d 127, 132-133; Sorge v. Sorge, 238 A.D.2d 890, 890) or should otherwise be set aside ( see Ashcraft v. Ashcraft [appeal No. 2], 195 A.D.2d 963, 963-964; see generally Natole v. Natole, 256 A.D.2d 558, 559).
Finally, we reject defendant's contention that the court erred in its valuation of a business in which defendant held an interest. Plaintiff submitted documents supporting the court's determination, and defendant cannot complain that the valuation of the business and his interest in it is unfair after he failed to disclose the requested financial documents ( see Cohen v. Cohen, 228 A.D.2d 961, 963; Kelly v. Kelly, 223 A.D.2d 625, 626, lv dismissed 88 N.Y.2d 875, lv denied 90 N.Y.2d 802).