Suzanne Calle v Dr. Enrique A. Calle

Calle v Calle 2006 NY Slip Op 03338 [28 AD3d 1209] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Suzanne Calle, Respondent,
v
Enrique A. Calle, Appellant.

—[*1]

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 9, 2005. The order denied defendant's motion to vacate in part the judgment of divorce.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied as untimely defendant's motion to vacate in part the judgment of divorce entered upon defendant's default (see Mauro v Mauro, 13 AD3d 345 [2004]; see also Passas v Passas, 18 AD3d 842 [2005]; Cook v Cook, 260 AD2d 160, 161 [1999], lv denied in part and dismissed in part 93 NY2d 994 [1999]). Although the courts have adopted a liberal policy with respect to vacating default judgments entered in matrimonial actions, that policy does not relieve the defaulting party of the burden of establishing a reasonable excuse for the default (see Passas, 18 AD3d 842 [2005]; Baumer v Baumer, 268 AD2d 495, 496 [2000]). The record does not support the contention of defendant that a stroke rendered him incapable of defending the divorce action and incapable of seeking relief from the default judgment until over seven years after its entry. "Defendant's medical evidence establishes neither that he was unable to appear or defend against plaintiff's claims, nor that any alleged medical condition prevented him from moving to vacate the default at an earlier date" (Molesky v Molesky, 255 AD2d 821, 822 [1998]). Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.