Krupinski v. Krupinski

6 Citing cases

  1. Lucas v. Lucas

    109 A.D.2d 781 (N.Y. App. Div. 1985)   Cited 11 times

    If this condition is not complied with, then order affirmed, with costs. Under the liberal policy of vacating defaults in matrimonial actions ( Vanderhorst v. Vanderhorst, 282 App. Div. 312; see also, Harris v. Harris, 35 A.D.2d 894; Krupinski v. Krupinski, 20 A.D.2d 719 ), the circumstances at bar warrant the reopening of the matter to the extent and under the conditions here indicated ( Cocchia v. Cocchia, 74 A.D.2d 592; Rutledge v. Rutledge, 60 A.D.2d 646; Rizzo v. Rizzo, 50 A.D.2d 915). While current amendments to the CPLR restored the court's power to exercise its discretion to excuse the type of default which occurred at bar ( see, CPLR 2005, 3012 [d], L 1983, ch 318), we do not view those amendments as suggesting that there is no need to comply with the time requirements of the CPLR.

  2. Shaw v. Shaw

    97 A.D.2d 403 (N.Y. App. Div. 1983)   Cited 131 times
    In Shaw, the Appellate Division described this conduct as "extrinsic" fraud which it defined as "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter" (Shaw, 97 AD2d at 403 [citations omitted]).

    It is a well-established principle of law that a motion to vacate a default judgment is addressed to the discretion of the court (see State Bank v Guiseppi Estates, 44 A.D.2d 878, 879; Harris v Harris, 35 A.D.2d 894), and should not ordinarily be granted in the absence of (1) a valid excuse and (2) a demonstration of merit (see 5 Weinstein-Korn-Miller, N Y Civ Prac, par 5015.04; Sorgie v Dalton, 90 A.D.2d 790; Small v Applebaum, 79 A.D.2d 572; Wall v Bennett, 33 A.D.2d 827; CPLR 5015, subd [a], par 1). The rule is not, however, applied with equal rigor in matrimonial actions where the State's interest in the marital res and allied issues (such as child support and custody) have called forth a more liberal approach, favoring dispositions on the merits (see Levy v Levy, 67 A.D.2d 998; Hewlett v Hewlett, 63 A.D.2d 977; Krupinski v Krupinski, 20 A.D.2d 719; Vanderhorst v Vanderhorst, 282 App. Div. 312, 314). Nevertheless, this liberality is not without its limits, and the court's beneficence in this specific area should not be bestowed on one who, although alleging a valid excuse for his default such as the extrinsic fraud alleged at bar (see, generally, Ann., 22 ALR2d 1312, 1332), fails to even submit a proposed answer with his moving papers, or in any way indicate that he has a meritorious defense to the underlying divorce action ( Biamonte v Biamonte, 57 A.D.2d 1052; cf. Lesko v Lesko, 79 A.D.2d 1100).

  3. Rutledge v. Rutledge

    60 A.D.2d 646 (N.Y. App. Div. 1977)   Cited 10 times

    iff alimony, child support and a counsel fee. As so modified, order affirmed, without costs or disbursements, and action remitted to Special Term for a prompt hearing as to the financial needs of plaintiff and her infant children, including reasonable counsel fees, and as to the financial situation of both parties, and for the entry of an appropriate amended judgment. Pending the new hearing and determination, defendant is to comply with the alimony and child support provisions of the judgment, as amended by the order dated October 19, 1976, which reduced child support payments on the ground that two of the parties' children had attained their majority. Order dated October 19, 1976 reversed, insofar as appealed from, without costs or disbursements, and plaintiff's motion denied, with leave to renew at the hearing herein ordered. Under the liberal policy of vacating defaults in matrimonial actions (Vanderhorst v Vanderhorst, 282 App. Div. 312; see, also, Harris v Harris, 35 A.D.2d 894; Krupinski v Krupinski, 20 A.D.2d 719), the circumstances at bar warrant the reopening of the judgment to the extent, and under the conditions, here indicated (see Rizzo v Rizzo, 50 A.D.2d 915). At the hearing, Special Term should also determine whether, in the light of defendant's circumstances, his failure to comply with the judgment was willful. Hopkins, J.P., Rabin, Shapiro and O'Connor, JJ., concur.

  4. Verney v. Verney

    53 A.D.2d 608 (N.Y. App. Div. 1976)   Cited 10 times

    Here, not only has the plaintiff remarried on the strength of his own decree, he has waited over a period of years before attacking it. Equitable relief will be defeated by the laches of the applicant (Krupinski v Krupinski, 20 A.D.2d 719; Whittley v Whittley, 60 Misc. 201). I perceive no reason of public policy which will be furthered by vacating the judgment; rather, I perceive reasons of weight to sustain the judgment.

  5. Rizzo v. Rizzo

    50 A.D.2d 915 (N.Y. App. Div. 1975)   Cited 7 times

    Order modified, by adding thereto, after the provision that the motion is "denied", the following, "except that (1) the motion is granted to the extent of reopening the question of alimony and directing a reassessment thereof, with leave to defendant to participate and offer evidence thereon, subject to the conditions (a) that the judgment remain in full force and effect unless and until vacated after reassessment and (b) that defendant comply fully with the said judgment in the interim; and (2) in the event that, after trial, alimony is fixed in a lesser amount, defendant shall be credited with the difference." As so modified, order affirmed, without costs. Under the liberal policy of vacating defaults in matrimonial actions (Vanderhorst v Vanderhorst, 282 App. Div. 312; see, also, Harris v Harris, 35 A.D.2d 894; Krupinski v Krupinski, 20 A.D.2d 719), the circumstances at bar warrant the reopening of the judgment to the extent, and under the conditions, here indicated (see Schutzer v Berger, 40 A.D.2d 725; Kerr v Kerr, 6 A.D.2d 807; Sabbeth v Sabbeth, 146 N.Y.S.2d 722). Hopkins, Acting P.J., Cohalan, Christ, Brennan and Munder, JJ., concur.

  6. Haslett v. Haslett

    25 A.D.2d 256 (N.Y. App. Div. 1966)   Cited 1 times

    The court properly considered that the interest of third parties was involved. (See Krupinski v. Krupinski, 20 A.D.2d 719, 720.) The equities weigh so heavily in favor of the husband that our intervention at this posture of the proceedings is unwarranted.