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Koslosky v. Koslosky

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 1999
267 A.D.2d 357 (N.Y. App. Div. 1999)

Opinion

Submitted November 24, 1999

December 20, 1999

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated November 25, 1998, which denied his motion, in effect, to vacate a judgment of the same court entered September 3, 1998, upon his default in appearing and answering.

Lowell B. Davis, Carle Place, N.Y., for appellant.

Janice S. Koslosky, Queens, N.Y., respondent pro se.

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

At a hearing to determine whether the defendant was personally served with process at his home on October 8, 1997, the conflicting testimony presented a question of credibility which the court resolved in favor of finding service. This determination, made with the opportunity to observe the witnesses' demeanor, is entitled to deference on appeal and we will not disturb it (see, Altman v. Wallach, 104 A.D.2d 391, 392 ).

Despite the liberal policy with respect to vacatur of defaults in matrimonial actions, "it is still incumbent upon the moving party to show a reasonable excuse for the default (i.e., that it was neither intentional nor willful) and the existence of a meritorious defense" (Kellerman v. Kellerman, 203 A.D.2d 533, 534 ;Estate of Allen v. Allen, 258 A.D.2d 423 ). The defendant did not offer a reasonable excuse for his default. Thus, the Supreme Court providently exercised its discretion in denying his motion, in effect, to vacate the judgment entered on his default (see,Baruch v. Baruch, 224 A.D.2d 649 ; O'Donnell v. O'Donnell, 172 A.D.2d 654 ; Rapp v. Rapp, 59 A.D.2d 737 ).

The defendant's remaining contentions are without merit.

O'BRIEN, J.P., SULLIVAN, GOLDSTEIN, LUCIANO, and FEUERSTEIN, JJ., concur.


Summaries of

Koslosky v. Koslosky

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 1999
267 A.D.2d 357 (N.Y. App. Div. 1999)
Case details for

Koslosky v. Koslosky

Case Details

Full title:JANICE S. KOSLOSKY, respondent, v. ANDREW J. KOSLOSKY, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 20, 1999

Citations

267 A.D.2d 357 (N.Y. App. Div. 1999)
699 N.Y.S.2d 912

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