Summary
In Bird v. Bird, 77 A.D.3d 1382, 908 N.Y.S.2d 317 (4th Dept.2010), the wife, acting pro se, defaulted but later proved that she was misled by her husband when the default occurred.
Summary of this case from Barone v. BaroneOpinion
No. CA 09-01404.
October 1, 2010.
Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), dated June 10, 2009. The order, insofar as appealed from, denied that part of the motion of defendant to vacate a default judgment of divorce.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in part and the default judgment of divorce is vacated.
MARK S. CARNEY, BUFFALO (JASON R. DIPASQUALE OF COUNSEL), FOR DEFENDANT-APPELLANT.
Present — Martoche, J.P., Carni, Green, Pine and Gorski, JJ.
Memorandum: Defendant, as limited by her brief on appeal, contends that Supreme Court abused its discretion in denying that part of her motion seeking to vacate the default judgment of divorce. We agree. "Although a party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense, `[o]ur courts have embraced a liberal policy with respect to vacating default judgments in matrimonial actions'" ( Dunbar v Dunbar, 233 AD2d 922, 922; see De Pass v De Pass, 42 AD3d 723, 724). In support of her motion, defendant submitted evidence that she was not represented by counsel and that plaintiff misled her with respect to his intention to pursue the divorce action ( see generally D'Alleva v D'Alleva, 127 AD2d 732, 735). In addition, defendant established a meritorious claim to her distributive share of the marital property from the marriage of nearly 20 years' duration ( see Viner v Viner, 291 AD2d 398). We thus conclude, particularly in light of the public policy favoring the disposition of matrimonial actions on the merits, that the court erred in denying defendant's motion insofar as it sought vacatur of the default judgment of divorce ( see id. at 399; see also Dunbar, 233 AD2d 922).