Richardson v. Richardson

Decision Date14 October 2003
Citation765 N.Y.S.2d 388,309 A.D.2d 795
CourtNew York Supreme Court — Appellate Division
PartiesJOHN T. RICHARDSON, Respondent,<BR>v.<BR>GLADYS RICHARDSON, Appellant.

Florio, J.P., S. Miller, Friedmann and Luciano, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff's decedent (hereinafter the former husband) and the defendant (hereinafter the former wife) were divorced in 1979 pursuant to a judgment which, among other things, called for the former marital residence to be sold when their youngest child attained the age of 18. In 1981 the parties allegedly entered into a written agreement pursuant to which the former wife agreed to convey her interest in the former marital residence to the former husband. The former wife received $4,000 at that time, and executed a document she later claimed was a loan acknowledgment. In 1988, when the former husband was unable to obtain refinancing, he tendered a deed to the former wife which she declined to execute.

The former husband commenced the instant action in 1989, inter alia, for a judgment declaring him to be the sole owner of the property. The former wife admittedly was served but failed to answer and, following an inquest, the court entered a judgment declaring the former husband to be the sole owner. In 2001 the former husband requested issuance of a sheriff's deed in order to facilitate his sale of the property to a third party, and the former wife cross-moved to vacate her default pursuant to CPLR 5015 (a) (3) on the ground of fraud, misrepresentation, or other misconduct. The Supreme Court denied the motion.

The former wife contends that she was not properly served with notice of the inquest in 1989 because the zip code was missing from her address in the letter transmitting the notice and in an affidavit of service prepared by the former husband's attorney. This contention is without merit (see Donohue v La Pierre, 99 AD2d 570 [1984]; Brownell v Feingold, 82 AD2d 844 [1981]; see also Peters v National R.R. Passenger Corp., 966 F2d 1483, 1487 [1992]; Pimentel v U.S. Drug Enforcement Admin., 99 F Supp 2d 420, 426 [2000]; E & H Partners v Broadway Natl. Bank, 39 F Supp 2d 275, 282 [1998]), and the Supreme Court properly denied her cross motion to set aside the default judgment on that basis.

A motion to vacate a judgment pursuant to CPLR 5015 (a) (3) must be made within a reasonable time (see Miller v Lanzisera, 273 AD2d 866, 868 [2000]; Green Point Sav. Bank v Arnold, 260 AD2d 543 [1999]). The former...

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5 cases
  • Ajnoha v. Jc Penney Life Ins. Co.
    • United States
    • U.S. District Court — Eastern District of New York
    • March 30, 2007
    ...has been interpreted to require, like Rule 60(b), that such motions be made "within a reasonable time." Richardson v. Richardson, 309 A.D.2d 795, 765 N.Y.S.2d 388, 390 (2d Dep't 2003). While there appears to be no New York case considering prejudice in the determination of what constitutes ......
  • Augustin v. Augustin
    • United States
    • New York Supreme Court — Appellate Division
    • December 28, 2010
    ...a reasonable time ( see Weimer v. Weimer, 281 A.D.2d 989, 722 N.Y.S.2d 328 [2001] [4 year delay unreasonable]; Richardson v. Richardson, 309 A.D.2d 795, 765 N.Y.S.2d 388 [2003] [12 year delay unreasonable]; Sieger v. Sieger, 51 A.D.3d 1004, 1006, 859 N.Y.S.2d 240 [2008], lv. denied 14 N.Y.3......
  • Lucero S. v. Gabriel M.
    • United States
    • New York Supreme Court — Appellate Division
    • March 8, 2011
    ...Augustin v. Augustin, 79 A.D.3d 651, 913 N.Y.S.2d 207; Sieger v. Sieger, 51 A.D.3d 1004, 1006, 859 N.Y.S.2d 240; Richardson v. Richardson, 309 A.D.2d 795, 796, 765 N.Y.S.2d 388; Weimer v. Weimer, 281 A.D.2d 989, 722 N.Y.S.2d 328). Here, the mother did not seek relief within a reasonable tim......
  • Superior Dental Care, P.C. v. Hoffman
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 2011
    ...he was not a party to the stipulation of settlement that theplaintiffs sought to enforce in this action ( Richardson v. Richardson, 309 A.D.2d 795, 796, 765 N.Y.S.2d 388). Accordingly, Hoffman timely moved to vacate the judgment, and the Supreme Court should have determined the motion on th......
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