Opinion · Appellate Division of the Supreme Court of the State of New York
Harris v. Harris
Harris v. Harris, 35 A.D.2d 894 (Appellate Division of the Supreme Court of the State of New York 1970)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1970-11-30
- Topic
- general
Order affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.
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HARRIS v. HARRIS,35 A.D.2d 894[3d Dept 1970]
PLATT J. HARRIS, Respondent, v. MARIE M. HARRIS, Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
Appeal from an order of the Supreme Court at Special Term, entered January 28, 1970 in Madison County, which denied a motion to open a default judgment of divorce. The appellant obtained a judgment of separation in April, 1962. Respondent commenced this action on September 20, 1967 for divorce based upon the parties having lived separate and apart pursuant to the separation judgment. From the commencement of the action until the granting of the default judgment there was considerable procedural delay. This was due largely to appellant's actions. She was not always represented by an attorney; she tried to act as her own attorney; and it was difficult to communicate with her since she had an address in Florida, but spent some time in New York State. The trial court refused to open the default on the ground that appellant did not show a valid excuse, or an absence of willfulness, and also failed to show a meritorious defense. Appellant contends that the trial court erred in failing to comply with CPLR321(subd. [c]), and in applying a standard in the exercise of its discretion which is inconsistent with the rule relating to matrimonial actions. We will consider appellant's latter contention first. The opening of a default is discretionary and the court must be permitted some latitude in applying the appropriate rules (Wallv.Bennett,33 A.D.2d 827). Because of the nature of the action, the courts, it is true, have been liberal in opening defaults in matrimonial actions. They have, however, in an appropriate case denied the right to open where the circumstances warrant a denial. (See, e.g.,Ryanv.Ryan,33 A.D.2d 969.) In the instant case the record reveals that the trial court repeatedly took steps to protect appellant's interest. In addition, there is nothing in the record to show that appellant has a meritorious defense. It is clear from the record that a decree of separation was obtained in 1962, and that the parties have lived separate and apart since that time. This judgment of divorce was based upon the nonfault provision of the Divorce Reform Law (L. 1966, ch. 254, § 2, eff. Sept. 1, 1967) to which the legislators failed to provide a defense. (Gleasonv.Gleason,26 N.Y.2d 28,35.) There are no children as a result of the marriage and respondent has remarried since he obtained his judgment of divorce. It would serve no useful purpose to these parties or to society to perpetuate such a marriage. (Gleasonv.Gleason, supra.) Considering all these facts and circumstances, the court was well within its discretion in denying appellant's application to open the default. As to the other point raised by appellant, we conclude that CPLR321(subd. [c]) has no application. Order affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.