Gilmore v. Gilmore

Aug 20, 2001
Versions:286 A.D.2d 416
730 N.Y.S.2d 239
2001 N.Y. App. Div. LEXIS 8103

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Maraño, J.), dated July 21, 2000, as denied those branches of his motion which were for leave to amend the answer and to dismiss the complaint pursuant to CPLR 3215 on the ground that the plaintiff failed to timely move for a default judgment based on his failure to serve and file an amended answer to the amended complaint and granted that branch of the plaintiffs motion which was for an interim attorney’s fee in the sum of $25,000.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff established a reasonable excuse for failing to timely move for a default judgment against the defendant pursuant to CPLR 3215. The plaintiff continued to proceed with the action and did not abandon her complaint. The plaintiffs delay in entering a default judgment was caused by the defendant’s repeated failure to comply with discovery demands and orders (see, CPLR 3215 [c]; Home Sav. v Gkanios, 230 AD2d 770; Flora Co. v Ingilis, 233 AD2d 418). In addition, the defendant’s conduct, including his submission of an answer to the original complaint and other involvement in the action, acted as a waiver of any right he may have had to dismissal of the complaint pursuant to CPLR 3215 (see, Sutter v Rosenbaum, 166 AD2d 644; Myers v Slutsky, 139 AD2d 709).

The defendant failed to establish a reasonable excuse for not submitting an amended answer pursuant to CPLR 3012 (d) (see, Blackman v Blackman, 131 AD2d 801; Spatz v Bajramoski, 214 AD2d 436).

The trial court providently exercised its discretion in awarding the plaintiff an interim attorney’s fee in the sum of $25,000 (see, Landau v Landau, 258 AD2d 508; Cacio v Cacio, 236 AD2d 574).

The defendant’s remaining contentions were addressed by this Court in Gilmore v Gilmore (279 AD2d 506). S. Miller, J. P., H. Miller, Schmidt and Cozier, JJ., concur.