Ray v. Ray

In an action for divorce, defendant husband appeals from an order of the Supreme Court, Westchester County (Dachenhausen, J.), dated March 14, 1984, which granted plaintiff wife’s motion, inter alia, to strike his answer and counterclaims, and an order of the same court, dated April 3, 1984, which denied defendant’s motion for reargument.

Order dated March 14, 1984, reversed, as a matter of discretion, and motion denied, on condition that defendant personally pays plaintiff $1,500 within 15 days after service upon him of a copy of the order to be made hereon, with notice of entry, and appears at an examination before trial upon written notice of not less than 10 days at the office of plaintiff’s counsel or at such time and place as the parties may agree, and completes the examination before trial within 30 days of its commencement. In the event that these conditions are not complied with, orde'r affirmed.

Appeal from order dated April 3, 1984 dismissed. No appeal lies from an order denying reargument.

Plaintiff is awarded one bill of costs.

No adequate reason has been furnished by defendant for his default in appearance on the date stated in a prior conditional order of preclusion. On the other hand, plaintiff has shown no serious prejudice resulting from the default. In view of the liberal policy of this court as to vacatur of defaults in matrimonial actions, and our review of the record indicating that defendant’s default on the appointed day may have been due to a temporary emotional problem, we reverse Special Term’s order dismissing defendant’s answer and counterclaims on condition that defendant pays $1,500 to plaintiff and promptly appears for the previously scheduled examination before trial (see, Antonovich v Antonovich, 84 AD2d 799; Cocchia v Cocchia, 74 AD2d 592; Price v Price, 52 AD2d 800). We note that Reed v Reed (93 AD2d 105) is distinguishable since that case involved the overriding issue of law of the case, an element not present herein. Titone, J. P., O’Connor, Rubin and Lawrence, JJ., concur.