Kaplan v. Kaplan , 60 A.D.2d 594 ( 1977 )

In a matrimonial action, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, entered May 2, 1977, as granted the branch of defendant’s motion which sought to vacate a judgment of divorce of the same court, entered August 26, 1976, and did so on condition that she serve an answer to the complaint within a stated period of time. Order reversed insofar as appealed from, on the law, without costs or disbursements, and the said branch of the motion is denied. After numerous negotiations between the attorneys, the parties executed a separation agreement. Immediately thereafter, defendant, in the presence of and on the advice of her counsel, verified an answer to the complaint served on her, which consented to the matter being placed on the uncontested matrimonial calendar for an inquest. After the entry of the judgment of divorce, defendant sought to vacate that judgment. Defendant has failed to show a sufficient excuse to warrant that relief (see Rado v Rado, 51 AD2d 811). As Special Term found, her allegations were unsupported conclusions and failed "to set forth factual statements to establish a meritorious defense of the action”. The agreement signed by the parties adequately provides for the support of defendant and the infant children. On these facts, it was an improvident exercise of discretion for Special Term to allow the defendant to reopen the action. Hopkins, J. P., Rabin, Shapiro and O’Connor, JJ., concur.