Opinion
April 1, 1999
Appeal from the Supreme Court, Bronx County (Judith Gische, J.).
The motion court correctly held that the 1991 default judgment of divorce, notwithstanding its failure to set forth any provisions for distribution of property as mandated by Domestic Relations Law § 236 (B) (5) (a), constitutes res judicata barring the former husband from commencing a subsequent separate action asserting an equitable distribution claim, which issue he had a full and fair opportunity to litigate in the original divorce action ( see, Boronow v. Boronow, 71 N.Y.2d 284; Albert v. Schoenlein, 229 A.D.2d 813). The motion court also properly exercised its discretion in denying the former husband's subsequent motion to vacate the default judgment of divorce to the extent of reopening the issue of equitable distribution with respect to the alleged former marital residence, in view of his unexcused and deliberate default in the divorce action ( see, e.g., Estate of Allen v. Allen, 258 A.D.2d 423), his failure to seek such vacatur for approximately six years after entry of the judgment and his receipt of a copy thereof, and his acceptance of the benefits of the judgment by remarrying. Under these circumstances, the former husband effectively waived any claim to equitable apportionment of the value of the alleged former marital residence and it was unnecessary to consider whether he would have had a meritorious claim to such an award in the absence of such waiver ( see, Bettino v. Bettino, 112 A.D.2d 181, 182).
Concur — Ellerin, P. J., Tom, Wallach and Saxe, JJ.