Opinion
May 1, 1989
Appeal from the Supreme Court, Queens County (Corrado, J.).
Ordered that the appeals from the order dated August 19, 1987, and the order dated September 21, 1987, which denied the defendant's motion for return of moneys, are dismissed, without costs or disbursements, as abandoned; and it is further,
Ordered that the order dated September 21, 1987, which denied the motion for a review of the contents of the Referee's report, is affirmed, without costs or disbursements.
On December 9, 1985, a Referee was appointed to conduct a judicial sale of the marital residence. By order dated May 11, 1987, the Supreme Court granted the Referee's motion for judicial confirmation of his report of the sale. The defendant, Howard Rapaport, did not appear in opposition to this motion. He subsequently moved to punish the Referee for contempt of court and for the return of certain funds allegedly held by the Referee. These motions were denied, by orders dated August 19, 1987, and September 21, 1987, respectively. Although the defendant lists both orders in his notice of appeal, he did not pursue any claims with respect to these orders in his appellate brief. Accordingly, the appeals from these orders are dismissed as abandoned.
In addition to the foregoing motions the defendant also moved for a hearing to review the contents of the Referee's report of the judicial sale. Since he never appeared in opposition to the original motion to confirm the report, however, his subsequent motion for review thereof constituted a collateral attack upon the order and was, therefore, in the nature of an application, pursuant to CPLR 5015, for relief from his default.
Relief from an order entered upon default may be granted where the movant establishes a reasonable excuse for the default and a prima facie showing of legal merit (see, Fidelity Deposit Co. v Andersen Co., 60 N.Y.2d 693; Berlin v New Hope Holiness Church of God, 93 A.D.2d 798, appeal dismissed 60 N.Y.2d 702; Blake v City of New York, 90 A.D.2d 531). The defendant presented no excuse for his prior default in his motion papers for a hearing to review the contents of the Referee's report.
Moreover, the defendant's conclusory allegations charging the commission of fraud on the part of the Referee were insufficient to warrant vacatur of his default (see, Matter of State of New York v Wiley, 117 A.D.2d 856; Bush v Bush, 65 A.D.2d 565; Swart v Lehmann, 39 A.D.2d 807, lv dismissed 31 N.Y.2d 669). Accordingly, the denial of his application for a hearing to review the contents of the referee's report was proper and did not constitute an improvident exercise of discretion. Kunzeman, J.P., Rubin, Eiber and Rosenblatt, JJ., concur.