[DOWNLOAD] "Elizabeth S. Otoole v. Robert v. Otoole" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Elizabeth S. Otoole v. Robert v. Otoole
- Author : Supreme Court of New York
- Release Date : January 03, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
Appeal from an order of the Supreme Court at Special Term (Conway, J.), entered February 13, 1981 in Albany County, which denied defendants motion to vacate a default judgment. The parties were divorced in 1965. A separation agreement previously entered into and providing a formula for calculating alimony and child support was incorporated into the divorce decree. Plaintiff brought this action in 1978 to recover support arrearages allegedly owed to herself and the parties three children, increased future support payments occasioned by defendants alleged gains in his own personal income, and counsel fees. After protracted procedural delays, December 14, 1979 was assigned as a day certain for the jury trial of this standards and goals case. The court adjourned the matter to December 18, 1979, on which date, at defendants request but over plaintiffs objection, it was again adjourned to January 2, 1980. However, defendant, a medical doctor, still was not ready to proceed and the trial was postponed until January 14, 1980, once more over plaintiffs objection. On January 14, defendants attorney sought another adjournment because his client was undergoing eye surgery. The court acceded and adjourned the matter to February 25, 1980, but did so on the express condition that defendant make two monthly support payments during the interim. When those payments were not made, the court granted plaintiff a default judgment for the precise amounts sought in her amended complaint. After defendants motion to reargue was denied, he moved to vacate the default on December 19, 1980, 10 months after the judgment had been awarded. For the first time it was now claimed on defendants behalf that he had tendered payment as required by the court and, therefore, had never been in default. Special Term found defense counsels affidavit not only legally deficient but factually misleading, and on observing that plaintiff was blind, a recipient of disability income and dependent upon the alimony and support payments due to her, refused to vacate the default. There is no substance to the contention that the court acted injudiciously in imposing, as a condition for adjournment, the [88 A.D.2d 1011 Page 1012]