Avital v. Avital

• Decision Date: 03 July 1989
• Parties: Emma AVITAL, Respondent, v. Eitan AVITAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 466

543 N.Y.S.2d 466

152 A.D.2d 523

Emma AVITAL, Respondent, v. Eitan AVITAL, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 3, 1989.

Jacobs, Katz & Lurie, P.C., Brooklyn (Sanford S. Lurie, of counsel), for appellant.

Emma Avital, Jamaica Estates, respondent pro se.

Before THOMPSON, J.P., and LAWRENCE, BALLETTA, and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment entered January 13, 1983, the defendant husband appeals from an order of the Supreme Court, Queens County (Zelman, J.), dated December 2, 1987, which directed a hearing on his motion to vacate a judgment entered upon his default and directed him to post a bond in the amount of $32,000.

ORDERED that on the court's own motion, the appellant's notice of appeal from so much of the order as directed a hearing is treated as an application for leave to appeal, the application is referred to Justice Balletta, and leave to appeal is granted by Justice Balletta (CPLR 5701[b][1]; and it is further,

ORDERED that the order is reversed, with costs, the motion to vacate the default judgment is granted, and the matter is remitted to the Supreme Court, Queens County, before another Supreme Court Justice for determination of the appellant's motion for downward modification of the maintenance and child support provisions of the judgment of divorce and the respondent's cross motion, inter alia, for a judgment in the principal amount of $2797 representing maintenance and child support arrears.

The husband's attorney was unable to appear for a hearing before Justice Zelman in the Supreme Court, Queens County on the first adjourned date regarding the husband's motion for a downward modification of the maintenance and child support obligations set forth in the judgment of divorce. He had been instructed, just five days before, by a Justice of the Supreme Court, Kings County, to commence a trial in an unrelated action to recover damages for personal injuries which had been on that court's trial calendar in excess of one and one-half years. At the direction of the Kings County Justice, the attorney submitted an affirmation of actual engagement to Justice Zelman on the date of the hearing, which affirmation was in compliance with the court rules governing requests for adjournments due to counsel's actual court engagement elsewhere (22 NYCRR 125.1[e][1]. Under these circumstances, it was an improvident exercise of...