Upon the following papers read on motion sequences 3 and 4, to wit: 1. Defendant’s Notice of Motion to Renew & Reargue; and 2. Plaintiff’s Order to Show Cause and Supporting Papers; 3. Defendant’s Affidavit & Affirmation in Opposition and Reply; and 4. Plaintiff’s Affidavit & Affirmation in Reply. DECISION & ORDER The instant motions were originally referred to conference by Order dated July 23, 2019. Thereafter, the Court attempted to assist the parties’ attorneys in settling the instant motions (and subsequent motions) to no avail. Upon request of counsel, the instant motions were re-submitted for written decision. BACKGROUND/PROCEDURAL HISTORY The parties were married on February 17, 1996 and have two (2) emancipated children, to wit: I.A., born August 7, 1998; and S.A., born June 11, 1997. The Plaintiff (“Wife”) filed for divorce on April 26, 2017 and a Preliminary Conference was scheduled for July 31, 2017. However, the Defendant (“Husband”) did not appear on said date and the matter was sent down for an Inquest to be held on October 16, 2017. The Husband was served with the Inquest Order dated July 31, 2017 on or about August 14, 2017 by certified mail, return receipt. On October 16, 2017, the Defendant appeared, and the Preliminary Conference was scheduled for November 22, 2017. The Defendant did not appear again on that date and the matter was again scheduled for Inquest to be held on January 24, 2018. The Husband was served with the Notice of Inquest dated December 20, 2017 on or about December 21, 2017 by regular mail. On January 24, 2018, the Husband did not appear in Court, and due to the Court’s calendar, the Inquest was marked “Ready and Passed” to January 29, 2018. The Husband was never served or advised of the January 29, 2018 date. The Husband did not appear on January 29, 2018 and the Inquest was held in his absence. Thereafter, the Court issued a Decision Upon Inquest on the record on January 29, 2018 and the transcript was So-Ordered on or about February 15, 2018. The Husband was served with a copy of the Inquest Decision on or about March 23, 2018. The Husband moved by Order to Show Cause dated April 11, 2018 for, inter alia, an Order vacating the default; the application was fully briefed and submitted on August 7, 2018. By Decision and Order dated September 26, 2018, this Court denied Defendant’s application. The Judgment of Divorce was entered on or about October 4, 2018. REARGUMENT/RENEWAL Currently before the Court is Defendant’s application to renew and reargue this Court’s Decision and Order dated September 26, 2018 and upon such reargument and/or renewal for an order vacating the Decision Upon Inquest and Judgment of Divorce. Renewal Pursuant to CPLR Rule 2221 (e), a motion for leave to renew shall (1) “be identified specifically as such”; (2) “be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) “contain reasonable justification for the failure to present such facts on the prior motion.” “‘A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”. Joseph v. Simmons, 114 A.D.3d 644, 644-645 (2d Dept. 2014) (internal citations omitted). Importantly, a motion for leave to renew “must be based upon new facts, not offered on the prior motion, that would change the prior determination…” Id. Here, the Defendant has not offered any new facts or a change in the law that would change the prior determination. There was no argument advanced by the Defendant in support of his application to renew this Court’s September 26, 2018 Decision and Order. Accordingly, Defendant’s motion for leave to renew pursuant to CPLR Rule 2221 (e) is denied. Reargument Pursuant to C.P.L.R. Rule 2221 (d), a motion for leave to reargue shall (1) “be identified specifically as such”; (2) “be based upon matters of fact or law…overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion”; and (3) “be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry…” It is in this Court’s discretion whether to grant leave to reargue provided the moving party demonstrates that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision. Marini v. Lombardo, 17 A.D.3d 545, 546 (2d Dept.2005) (internal citations omitted); see also Siegel v. Glassman, 157 A.D.3d 836, 837 (2d Dept. 2018). However, “‘a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented’”. Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dept. 2014). The Defendant argues that leave to reargue this Court’s September 26, 2018 Decision and Order should be granted for several reasons. Specifically, the Husband argues that this Court overlooked and misapprehended the facts as it relates to his reasoning in support of the “reasonable excuse” element necessary to vacate a default. The Husband states that on January 24, 2018, he was to accompany the parties’ son to Berlin, Germany so that he can attend college. The Husband further argued that it was upon the Wife’s insistence that the Husband accompanied the parties’ son so that he did not have to travel alone; there was also evidence presented as to when the new tickets were purchased so that both the Husband and son could travel together. The Husband further argues that the family previously planned to spend January 24, 2018 together before their son was scheduled to travel to Germany. Text message conversations between the parties were also provided which substantiate this argument. In fact, the Wife seemed to mislead the Husband as to her whereabouts on January 24, 2018, informing him she was at work when she was in fact in Court. The Husband also contends that the Wife made misrepresentations to the Court to gain a financial windfall when she, through her attorney, advised the Court on January 29, 2018 that the Defendant “did not intend to come”. See page 2 to the January 29, 2018 Transcript annexed to Plaintiff’s moving papers as Exhibit K. The Husband further argues that the Court misapprehended and overlooked the facts and law with respect to the rescheduling of the Inquest to January 29, 2018. The Husband posits that he had no notice of this appearance and was not served with any notice of said date. Additionally, the Wife was fully aware that the Husband would still be traveling outside of the country with the parties’ son. The Defendant further suggests that this Court overlooked the law as to the liberal policies in vacating default judgments in matrimonial proceedings. In opposition to Defendant’s request for leave to reargue the September 26, 2018 Decision and Order, the Plaintiff argues that she does “not believe the Court misunderstood or overlooked any other facts or law in rendering its Decision and Order…The Court’s September 26, 2018 Decision and Order took into account all the factual and legal arguments offered by the Defendant…” Here, this Court finds that it did overlook and misapprehend certain facts and law in its September 26, 2018 Decision and Order as detailed by the Husband and, therefore, Defendant’s application for leave to reargue the September 26, 2018 Decision is granted. The September 26, 2018 Decision and Order is vacated in its entirety, including the previous counsel fee award to the Wife. DEFAULT Defendant’s application further seeks, inter alia, upon reargument, an order setting aside the January 29, 2018 Decision after Inquest and vacating the Defendant’s default. Courts have “adopted a liberal policy with respect to vacating defaults in matrimonial matters because of the State’s interest in the marital res and related issues favors dispositions on the merits.” Backhaus v. Backhaus, 128 A.D.3d 872, 873 (2d Dept. 2015) (internal citations omitted). However, the party attempting to vacate the default must establish both a reasonable excuse for the default and a potentially meritorious defense. Id. The Husband argues several reasons in support of his reasonable excuse for failing to appear on the Inquest scheduled for January 24, 2018 and held on January 29, 2018. The Husband states, and the exhibits annexed to his moving papers confirm, that he was traveling with the parties’ son to Berlin, Germany to take him to college. The parties do not contest that the flight was in the evening of January 24, 2018. However, the Wife represented to the Husband that she would adjourn the Inquest previously scheduled for January 24, 2018 so that the parties could spend the day together with their son prior to him leaving. The Wife claims she did not inform the Husband she would adjourn that date. On January 24, 2018, the Wife told the Husband that she was called into work for a half day and would “be home soon”. It is clear that this was a blatant misrepresentation by the Wife as she was present in Court on January 24, 2018. As mentioned, supra, due to congestion in the Court’s calendar, the Inquest was marked “Ready and Passed” to January 29, 2018. There is no dispute that the Husband never received notice of the new Inquest date. Further, there is no dispute that the Husband was still out of the country with the parties’ son on January 29, 2018. See Exhibit C to Husband’s moving papers which contain copies of his stamped passport. On January 29, 2018, the Wife, through her attorney, advised the Court that the Defendant “did not intend to come”. See page 2 to the January 29, 2018 Transcript annexed to Plaintiff’s moving papers as Exhibit K. This was another misrepresentation by the Wife; at no time did she advise the Court that the Husband was traveling out of the country with the parties’ son. The Court notes that notice of the Inquest must be served upon the Defendant and he did not have proper notice of the January 29, 2018 Inquest. See Sabeti v. Aminpour, 59 A.D.3d 422, 424 (2d Dept. 2009). While the Court again cautions the Husband that he cannot rely on representations by the Wife (i.e. that she would obtain adjournments on his behalf), the Court finds that the Husband has established a reasonable excuse for his default based upon the fact that he was out of the country, but more importantly, because he did not receive prior notice of the January 29, 2018 Inquest. The Court also finds that the Defendant need not show a potentially meritorious defense because the Defendant’s default is being vacated as a matter of law. See Sposito v. Cutting, 165, A.D.3d 836,865 (2d Dept. 2018) (“As the defendant’s default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ‘is required as a matter of law and due process, and no showing of a potentially meritorious defense is required”) (internal citations omitted). Regardless, however, the Defendant did present a potentially meritorious defense, for example, as it relates to the division of the parties’ retirement accounts and other marital property. Based on the foregoing, the Defendant’s default is vacated pursuant to C.P.L.R. Rule 5015 (a)(1). Accordingly, Court’s Decision after Inquest dated January 29, 2018 and Judgment of Divorce entered October 4, 2018 are vacated. PLAINTIFF’S APPLICATION By cross Order to Show Cause, the Plaintiff seeks, inter alia, for an Order finding the Defendant in contempt and counsel fees. As detailed at length herein, the Defendant’s application to reargue the September 26, 2018 Decision and Order is granted and all Decisions and Order are vacated. Consequently, the instant application is denied as academic. ORDERED that Defendant’s motion for leave to renew pursuant to CPLR 2221 (d) is denied for the reasons set forth herein; and it is further ORDERED that Defendant’s motion for leave to reargue pursuant to CPLR 2221 (d) is granted to the extent detailed herein; and it is further ORDERED that upon reargument, this Court’s September 26, 2018 is set aside and vacated in its entirety; and it is further ORDERED that upon reargument, this Court’s Decision After Inquest dated January 29, 2018 is set aside and vacated in its entirety; and it is further ORDERED that upon reargument, the Judgment of Divorce entered on October 4, 2018 is set aside and vacated in its entirety; and it is further ORDERED that upon reargument, this matter will be restored to the Court’s calendar and it will issue a separate Preliminary Conference Order; and it is further ORDERED that upon reargument, all arrears that accumulated under the January 29, 2018 Decision after Inquest, Decision and Order dated September 26, 2018 and Judgment of Divorce entered October 4, 2018 are set at zero and the Court will issue a separate Order to the Child Support Enforcement Bureau; and it is further ORDERED that Plaintiff’s application is denied in its entirety; and it is further ORDERED that all relief requested not specifically addressed herein is denied. The foregoing constitutes the Decision and Order of this Court. Dated: October 21, 2019 Central Islip, New York
