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Branch v. Branch

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 20, 2009

WILLIAM BRANCH, RESPONDENT,
v.
LISA BRANCH, APPELLANT.

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated June 24, 2008, which denied her motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, ARIEL E. BELEN and PLUMMER E. LOTT, JJ.

(Index No. 23664/06)

DECISION & ORDER

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the defendant's motion to vacate her default in failing to appear for trial and to restore the action to the trial calendar is granted.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendant's motion. The defendant was approximately one hour late in appearing for trial, there was no indication that her lateness was willful or inexcusable, and there was no indication that the plaintiff was prejudiced by the short delay (see Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 35 AD3d 668; Jolkovsky v Legeman, 32 AD3d 418). Moreover, the courts generally have "a liberal policy with respect to vacating defaults in matrimonial actions" (Passas v Passas, 18 AD3d 842, 842).

MASTRO, J.P., DILLON, DICKERSON, BELEN and LOTT, JJ., concur.

20091020

© 1992-2009 VersusLaw Inc.



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