Rigwan v. Neus

205 A.D.3d 1062

166 N.Y.S.3d 901 (Mem)

Ilana RIGWAN, appellant,

v.Jordan NEUS, respondent.

2019–07711

Index No. 6021/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 10, 2022

May 25, 2022

Ilana Rigan, Miami, Florida, appellant pro se.

Feldman and Feldman, Manhasset, NY (Arza Feldman and Steven Feldman of counsel), for respondent.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to annul a marriage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (James F. Quinn, J.), dated April 5, 2019. The order denied the plaintiff's motion, inter alia, in effect, to vacate an order of the same court dated January 22, 2018, granting the defendant's motion to change venue from New York County to Suffolk County, and granted the defendant's cross motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and for an award of attorney's fees.

ORDERED that the order dated April 5, 2019, is affirmed, with costs.

The parties to this action were divorced by a judgment of divorce of the Supreme Court, Suffolk County, entered August 29, 2003. On October 5, 2017, the plaintiff commenced this action for an annulment in New York County by summons with notice. In an order dated January 22, 2018, the Supreme Court granted the defendant's unopposed motion to change venue of this action from New York County to Suffolk County. The plaintiff moved, inter alia, in effect, to vacate the January 22, 2018 order. The defendant cross-moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and for an award of attorney's fees. In the order appealed from, the court denied the plaintiff's motion and granted the defendant's cross motion. We affirm.

The Supreme Court properly denied that branch of the plaintiff's motion which was to vacate the January 22, 2018 order. A party seeking to vacate an order entered upon its default must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Velasquez v. Mosdos Meharam Brisk of Tashnad, 189 A.D.3d 1655, 140 N.Y.S.3d 49 ). Here, the plaintiff failed to demonstrate either a reasonable excuse for her default in opposing the defendant's motion or a potentially meritorious opposition to the motion (see Gross v. Lebel, 199 A.D.3d 780, 154 N.Y.S.3d 265 ).

The Supreme Court also properly granted that branch of the defendant's cross motion which was to dismiss the complaint. In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" ( Elow v. Svenningsen, 58 A.D.3d 674, 674, 873 N.Y.S.2d 319 ). The "sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see 255 Butler Assoc., LLC v. 255 Butler, LLC, 173 A.D.3d 655, 656, 102 N.Y.S.3d 699 ). A party seeking dismissal pursuant to CPLR 3211(a)(1) "on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim" ( Elow v. Svenningsen, 58 A.D.3d at 675, 873 N.Y.S.2d 319 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; 255 Butler Assoc., LLC v. 255 Butler, LLC, 173 A.D.3d at 656...