Price v. Price

• Decision Date: 18 May 1976
• Citation: 383 N.Y.S.2d 349,52 A.D.2d 800
• Parties: Margery PRICE, Plaintiff-Respondent, v. Robert PRICE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 349

383 N.Y.S.2d 349

52 A.D.2d 800

Margery PRICE, Plaintiff-Respondent, v. Robert PRICE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 18, 1976.

S. G. Fredman, New York City, for plaintiff-respondent.

M. L. Lifflander, New York City, for defendant-appellant.

Before MURPHY, J.P., and BIRNS, SILVERMAN, NUNEZ and YESAWICH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered January 8, 1976, denying motion to relieve defendant-husband from default in answering the complaint, is unanimously affirmed, without prejudice however to the right of defendant-husband to renew his motion below to open the default and to serve an answer on a factual showing of a meritorious defense to the action. Respondent shall recover of appellant $40 costs and disbursements of this appeal.

While no adequate excuse has been shown by the defendant-husband for his default, this is a matrimonial action involving the likelihood of a final determination of the matrimonial status of the parties on default. 'The fact that defendant has not sufficiently established an adequate excuse for (his) default does not mandate denial of (his) motion. 'It has repeatedly been held that the general rule in respect to opening defaults in ordinary actions is not to be applied so rigorously in a matrimonial action' (Vanderhorst v. Vanderhorst, 282 App.Div. 312, 314, 123 N.Y.S.2d 115, 117.).' Revson v. Revson, 33 A.D.2d 738(7), 305 N.Y.S.2d 891 (1st Dep't 1969). Again in Munkacsi v. Munkacsi, 4 A.D.2d 854(1), 166 N.Y.S.2d 473 (1st Dep't 1957) this Court said:

'It is clear that the default in this case was not inadvertent. . . . In view of the fact that this action would finally determine the matrimonial status of the parties it should not be disposed of on default. We feel therefore that the default should be opened.'

However, the defendant-husband must justify the opening of the default by a factual showing that he has a meritorious defense, which thus far he has not done.