Revson v. Revson

• Decision Date: 02 December 1969
• Citation: 33 A.D.2d 738,305 N.Y.S.2d 891
• Parties: Martin E. REVSON, Plaintiff-Appellant, v. Julie Phelps REVSON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 891

305 N.Y.S.2d 891

33 A.D.2d 738

Martin E. REVSON, Plaintiff-Appellant, v. Julie Phelps REVSON, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 2, 1969.

W. T. Gallagher, White Plains, for plaintiff-appellant.

I. D. Goodstein, New York City, for defendant-respondent.

Before CAPOZZOLI, J.P., and TILZER, NUNEZ and McNALLY, JJ.

PER CURIAM.

Order, entered June 19, 1969, granting defendant's motion to vacate a default judgment of divorce to the extent of permitting her to serve and file her answer to the complaint herein, affirmed, without costs or disbursements to either party. The order appealed from permitted the decree of divorce to remain in effect pending the determination of the issues raised by the answer to be interposed.

This action was brought under § 170, subd. (5) of the Domestic Relations Law, based upon plaintiff's allegation that two years had elapsed since a judgment of separation was awarded to defendant. At Special Term defendant, in order to show merit to her defense, relied upon the 'unsettled state of the law, and * * * the absence of any Appellate Court decision interpreting the provisions of § 170 of the Domestic Relations Law. * * *'. Subsequent to Special Term's decision in this matter, this Court, in Gleason v. Gleason, 32 A.D.2d 402, 302 N.Y.S.2d 857, held that § 170, subd. (5) of the Domestic Relations Law is not retroactive and does not extend to separation judgments which were entered prior to the effective date of that section's enactment. Hence, it now appears that there may be merit to defendant's position. The fact that defendant has not sufficiently established an adequate excuse for her default does not mandate denial of her 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, at 314, 123 N.Y.S.2d 115, at 117. In that connection the Court added: 'Though the default in pleading here was no inadvertent, in the public interest it should be opened'. This Court also directed the opening of a default in Munkacsi v. Munkacsi, 4 A.D.2d 854, 166 N.Y.S.2d 473, even though there it was 'clear that the default * * * was not inadvertent'.

The dissenting opinion herein adverts to the fact that, if defendant is successful in this action, it may cause irreparable damage to an innocent third party, the second Mrs. Revson. Plaintiff's remarriage, which took place just two days after he obtained this default judgment, should not be a bar to defendant's right to litigate the issues in this...