Nicole A. Zeledon v. O. Anthony Zeledon

Summary

The New York Appellate Division, Third Department, dismissed an appeal from an intermediate order denying a husband's motion to vacate a default in a divorce action because a final judgment of divorce had been entered. Reviewing the issues through the appeal from the judgment, the court held that the motion to vacate was untimely and that the husband had not shown a basis to excuse the delay or establish fraud or other misconduct. The court affirmed the judgment of divorce, including the distribution of the husband's pension under the Majauskas formula.

Holdings

1. Entry of the judgment of divorce required dismissal of the appeal from the intermediate order denying the motion to vacate the default, although issues raised concerning that order could be reviewed in the appeal from the judgment.
2. A motion to vacate a default under CPLR 5015(a)(1) must be made within one year after service of the judgment or order with written notice of entry, and the movant must establish both a reasonable excuse for the default and a potentially meritorious defense.
3. Supreme Court did not err in declining to construe the husband's pro se correspondence as timely motions to vacate because there was no evidence that he served copies of the correspondence on the wife.
4. Although Supreme Court has inherent authority to vacate its own judgment or order in the interest of justice after expiration of the CPLR 5015(a)(1) one-year period, it did not abuse its discretion by declining to exercise that authority here.
5. The husband's motion to vacate under CPLR 5015(a)(3) failed because it was not made within a reasonable time.

Questions Presented

1. Whether the appeal from the order denying the husband's motion to vacate the default had to be dismissed after entry of the judgment of divorce.
2. Whether the husband's motion to vacate the default under CPLR 5015(a)(1) was untimely.
3. Whether the husband's pro se correspondence to the court could be treated as a timely motion to vacate despite the absence of proof that it was served on the wife.
4. Whether Supreme Court abused its discretion by declining to vacate the default in the interest of justice despite the husband's asserted medical excuse.
5. Whether the husband's motion under CPLR 5015(a)(3), based on alleged fraud, misrepresentation, or misconduct, was made within a reasonable time.

Disposition

other