

McNally v McNally (2015 NY Slip Op 03137)





McNally v McNally


2015 NY Slip Op 03137


Decided on April 15, 2015


Appellate Division, Second Department


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.



Decided on April 15, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.


2013-05317
 (Index No. 20701/01)

[*1]Patricia McNally, respondent, 
vEdward McNally, appellant.


Jeffrey W. Waller, Huntington, N.Y. (Darla A. Filiberto of counsel), for appellant.
Enza Cammarasana, Northport, N.Y., for respondent.

DECISION & ORDER
In a matrimonial action in which the parties were divorced by judgment dated November 15, 2005, the defendant appeals, as limited by his brief, from so much an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 26, 2013, as denied his motion, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Pines, J.), dated August 1, 2006, which granted the plaintiff's unopposed motion, inter alia, to hold him in contempt of court.
ORDERED that the order dated March 26, 2013, is affirmed insofar as appealed from, with costs.
To succeed on his motion, in effect, pursuant to CPLR 5015(a)(1) to vacate a prior order granting the plaintiff's unopposed motion, inter alia, to hold him in contempt of court, the defendant was required to establish both a reasonable excuse for his failure to oppose the plaintiff's motion and the existence of a potentially meritorious opposition to that motion (see Diaz v Diaz, 71 AD3d 947, 948). Since the defendant failed to establish a reasonable excuse for his failure to oppose the plaintiff's motion, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant's motion (see Hasanji v Hasanji, 121 AD3d 753; Diaz v Diaz, 71 AD3d at 948). In light of the defendant's failure to establish a reasonable excuse, we need not address the defendant's contentions regarding whether he had a potentially meritorious opposition to the plaintiff's motion (see Diaz v Diaz, 71 AD3d at 948).
BALKIN, J.P., HALL, MILLER and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


