Petroske Riezenman & Meyers, P.C., Hauppauge, NY (Danielle Murray of counsel), for appellant-respondent.

Rubin & Rosenblum, PLLC, Melville, NY (Gayle R. Rosenblum of counsel), for respondent-appellant.

In an action for a divorce and ancillary relief, the defendant appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Suffolk County (Cheryl A. Joseph, J.), dated October 8, 2020. The order, insofar as appealed from, (1) denied that branch of the defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate a judgment of divorce of the same court entered June 15, 2020, upon her default in appearing at an inquest, and (2) denied that branch of her motion which was pursuant to Domestic Relations Law § 237 (a) for an award of counsel fees. The order, insofar as cross-appealed from, denied the plaintiff's cross-motion for an award of counsel fees.

Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate the judgment of divorce entered upon her default in appearing at the inquest, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.

The parties married in 1984 and have two adult children. In December 2018, the plaintiff commenced this action for a divorce and ancillary relief, and on or about December 31, 2018, the defendant admitted that she was served with a summons with notice. In January 2019, the parties entered into a partial stipulation of settlement resolving the equitable distribution of certain real property. In July 2019, the Supreme Court issued a preliminary conference order, which directed the parties to appear for a preliminary conference scheduled for August 22, 2019. The plaintiff allegedly served a copy of the preliminary conference order upon the defendant on July 18, 2019, by mailing a copy of the order to the defendant's New York address. However, before the preliminary conference could be held, the plaintiff's attorney filed an affirmation of actual engagement, and the preliminary conference was rescheduled to October 4, 2019. The plaintiff allegedly served the defendant with a copy of the affirmation of actual engagement, which contained a handwritten notation indicating the adjourned date for the preliminary conference, by mailing it to her New York address. On October 4, 2019, the defendant failed to appear at the preliminary conference. As a result, the court ordered an inquest to be held on November 22, 2019, and directed [*2]that the inquest order be served on the defendant by both certified mail, return receipt requested, and regular mail. On October 10, 2019, the plaintiff allegedly served a notice of inquest on the defendant by certified mail, return receipt requested, and regular mail at her New York address.

On November 22, 2019, the defendant did not appear at the inquest. The inquest was held and a decision was rendered. A judgment of divorce was later entered on June 15, 2020. Thereafter, the defendant moved, inter alia, to vacate the judgment of divorce, and for an award of counsel fees. The plaintiff opposed the motion and cross-moved for an award of counsel fees. By order dated October 8, 2020, the Supreme Court denied the motion and cross-motion. The defendant appeals, and the plaintiff cross-appeals.

"Pursuant to CPLR 5015 (a) (1), a party seeking to vacate a default ordinarily must show a reasonable excuse for his or her default and a meritorious defense to the action or motion" (Genzone v Genzone, 146 AD3d 752, 753 [2d Dept 2017], citing Nationstar Mtge., LLC v McLean, 140 AD3d 1131, 1132 [2016]). Notably, "in matrimonial actions, this Court applies a liberal policy with respect to vacating defaults" (Genzone v Genzone, 146 AD3d at 753; see Backhaus v Backhaus, 128 AD3d 872, 872-873 [2015]; Osman v Osman, 83 AD3d 1022, 1023-1024 [2011]). In evaluating a proffered excuse, the court should take into account "the procedural history and particular facts of the case" (Capurso v Capurso, 134 AD3d 974, 976 [2015]; see Viner v Viner, 291 AD2d 398, 398-399 [2002]), including whether the default was willful (see Ito v Ito, 73 AD3d 983, 984 [2010]).

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate the judgment of divorce entered upon her default in appearing at the inquest. After admitting that she was served with the summons with notice, the defendant voluntarily and actively participated in the divorce proceedings, including entering into a partial stipulation of settlement concerning issues of equitable distribution, up until her absences from the preliminary conference on October 4, 2019, and from the inquest on November 22, 2019. The defendant submitted affidavits explaining that she did not receive the notice of inquest because she was in Florida caring for a hospitalized family member for much of July 2019 through February 2020, as well as screenshots of text messages from July 2019, between her and the plaintiff, in which she advised the plaintiff that she would be traveling to Florida "over the coming months" to care for her family member. Additionally, the record does not contain proof that the defendant was notified of any of the court dates in question in any manner other than by mail service at her New York address, nor does the record contain a return receipt for the certified mailing of the notice of inquest.

Moreover, upon returning to New York in February 2020, the defendant, who had been pro se since the commencement of the action, timely retained counsel and moved to vacate the judgment of divorce. Under the totality of the circumstances, including proof that the defendant's default was not willful, the defendant proffered a reasonable excuse for her default (see Anekwe v Okoroafor, 121 AD3d 930, 930-931 [2014]; Viner v Viner, 291 AD2d at 398-399).

The defendant also established a potentially meritorious defense, since despite having comparable finances, among other things, the Supreme Court did not equalize the parties' retirement accounts, distributed the defendant's pension but not the plaintiff's, and ordered the defendant to pay the plaintiff's counsel fees (see generally Domestic Relations Law § 236 [B] [5]; Spencer-Forrest v Forrest, 159 AD3d 762, 763-764 [2018]; Viner v Viner, 291 AD2d at 399).

The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to Domestic Relations Law § 237 (a) for an award of counsel fees, as well as the plaintiff's cross-motion for the same relief (see generally Spataro v Spataro, 211 AD3d 1069, 1070 [2022]; Kugler v Kugler, 174 AD3d 878, 879 [2019]; Vitale v Vitale, 112 AD3d 614, 615 [2013]; Prichep v Prichep, 52 AD3d 61, 64 [2008]).

The defendant's remaining contentions are without merit or need not be reached in light of the foregoing. Brathwaite Nelson, J.P., Genovesi, Warhit and Wan, JJ., concur.