Berger v. Berger

¶1— In a matrimonial action in which a judgment of divorce was granted to the plaintiff husband, upon the default of the defendant wife, the defendant appeals from an order of the Supreme Court, Suffolk County, dated October 24, 1980, which, without a hearing, denied her motion to vacate the default judgment. Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for an immediate hearing in accordance herewith. Under the circumstances of this case and in view of the serious nature of defendant’s allegations concerning the negotiation and execution of the stipulation of settlement, it was improper for Special Term to have denied her motion on conflicting affidavits without conducting an evidentiary hearing (see Pisano v Pisano, 71 AD2d 670; see, also, Christian v Christian, 42 NY2d 63). At the hearing the defendant may offer evidence of whether the stipulation of settlement and judgment of divorce should be vacated on the ground of fraud, duress, or other similar good cause. Damiani, J.P., Mengano, Gibbons and Thompson, JJ., concur.