BUSA v. BUSA, N.Y. App. Div., Judgment, Law, casemine.com

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Attorney(S)

Philip T. Feiring, West Hempstead (Susan R. Nudelman of counsel), for appellant. Andrew C. Jacobs, East Greenbush, for respondent.

Judges

CARDONA, P.J.

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Smart Summary

Factual and Procedural Background

The parties, Lawrence P. Busa (respondent) and Margaret L. Busa (appellant), were divorced by a judgment entered on August 13, 1982, in Columbia County. This judgment did not include an award of equitable distribution, leaving that issue for future application, which never occurred. Since the divorce, the defendant (Margaret) has occupied the former marital residence exclusively. In 1991, the plaintiff (Lawrence) commenced a partition action under RPAPL Article 9 by serving a summons and complaint on the defendant. The defendant failed to answer and later moved to vacate her default and compel acceptance of her answer. In her proposed answer, she contended that the divorce judgment was ineffective due to the absence of an equitable distribution award, citing precedent that such a judgment is nonfinal and without legal effect. She further claimed she occupied the residence under a temporary exclusive possession grant from the divorce action. The Supreme Court denied her motion, finding no meritorious defense, and she appealed.

Legal Issues Presented

Whether the defendant's failure to answer the partition action should be excused based on law office failure and whether the motion to vacate the default should be granted.
Whether the absence of an equitable distribution award in the divorce judgment rendered the divorce ineffective and the tenancy by the entirety unsevered, impacting the plaintiff's right to seek partition.
Whether the defendant's occupancy of the former marital residence pursuant to a temporary exclusive possession order continued post-divorce judgment.
Whether the precedent decisions in Sullivan v Sullivan and Garcia v Garcia should be applied retroactively to invalidate the parties' divorce judgment.

Arguments of the Parties

Appellant's Arguments

The divorce judgment was ineffective because it failed to award equitable distribution, thus the tenancy by the entirety was not severed.
She occupied the former marital residence under a temporary exclusive possession order issued during the divorce proceedings.

Respondent's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Garcia v Garcia, 178 A.D.2d 683	A divorce judgment without an equitable distribution award is nonbinding, nonfinal, and without legal effect.	Referenced in defendant's defense but court declined to apply retroactively to invalidate the parties’ divorce judgment.
Sullivan v Sullivan, 174 A.D.2d 862	Similar holding as Garcia regarding divorce judgments lacking equitable distribution awards.	Referenced in defendant's defense; court held these decisions operate prospectively, not retroactively.
American Sec. Ins. Co. v Williams, 176 A.D.2d 1094	Standards governing discretionary denial of motions to vacate defaults under CPLR 3012(d).	Cited to support that Supreme Court improvidently denied defendant’s motion solely for failure to demonstrate meritorious defense.
Better v Town of Schodack, 169 A.D.2d 965	Further guidance on discretionary relief from defaults.	Supported the need to consider circumstances of the default rather than denying motion outright.
Continental Cas. Co. v Cozzolino Constr. Corp., 120 A.D.2d 779	Discretionary relief from default and motions practice.	Reinforced the principle that courts must consider all circumstances before denying relief.
Gager v White, 53 N.Y.2d 475	Retroactivity of legal rulings and finality of judgments.	Used to justify prospective application of Sullivan and Garcia decisions to avoid destabilizing final divorce judgments.
Weaver v Weaver, 72 A.D.2d 221	Termination of temporary exclusive possession orders upon entry of divorce judgment.	Supported the conclusion that temporary exclusive possession ended with the divorce judgment.
Givens v Givens, 138 A.D.2d 348	Conversion of tenancy by entirety to tenancy in common upon divorce.	Supported plaintiff’s right to bring partition action post-divorce.
McNally v McNally, 129 A.D.2d 686	Similar principle on tenancy conversion and partition rights.	Affirmed the legal basis for plaintiff’s partition action.
Ripp v Ripp, 38 A.D.2d 65	Tenancy conversion and partition rights; affirmed on appeal.	Further supported plaintiff’s entitlement to partition under tenancy in common.

Court's Reasoning and Analysis

The court acknowledged precedent holding that divorce judgments lacking equitable distribution awards are nonfinal and without legal effect. However, it declined to apply these rulings retroactively to invalidate the parties’ 1982 divorce judgment, reasoning that such retroactive application would destabilize long-finalized judgments. Instead, the court directed that the precedent decisions operate prospectively from December 5, 1991.

The court found that Supreme Court abused its discretion by denying the defendant’s motion to vacate the default solely because she failed to demonstrate a meritorious defense. The court emphasized that the circumstances of the default—specifically, law office failure due to counsel’s mistaken belief that an extension request sufficed—constituted a reasonable excuse under CPLR 2005. Since the plaintiff was not prejudiced, the motion to vacate was properly granted.

The court further held that any temporary exclusive possession order ended upon entry of the divorce judgment. Moreover, the divorce judgment converted the parties’ tenancy by the entirety into a tenancy in common, thereby permitting the plaintiff to seek partition under RPAPL 901(1). The court’s analysis thus supported the plaintiff’s right to bring the partition action subject to any defenses or counterclaims.

Holding and Implications

The court reversed the Supreme Court’s order and granted the defendant’s motion to vacate the default and accept her answer.

The decision reinstates the defendant’s ability to respond to the partition action despite the initial default, based on reasonable excuse and absence of prejudice. It clarifies that the precedent cases concerning equitable distribution awards in divorce judgments apply prospectively, preserving the finality of older divorce judgments. The ruling affirms that the tenancy by entirety converts to tenancy in common upon divorce, allowing partition actions. No new precedent was established; the decision’s direct effect is to allow the defendant’s answer and to proceed with the partition action under established law.

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LAWRENCE P. BUSA, Also Known as LARRY BUSA, Respondent, v. MARGARET L. BUSA, Appellant.

CARDONA, P.J.

The parties were divorced by a judgment of divorce entered August 13, 1982 in Columbia County. The judgment of divorce did not contain an award of equitable distribution but left it to future application, which evidently never occurred. Defendant has occupied the former marital residence exclusively since that time. Plaintiff commenced this action seeking partition (RPAPL art 9) by service of a summons and complaint upon defendant on December 26, 1991. Defendant failed to serve an answer. Subsequently, on March 2, 1992, defendant moved to vacate her default in answering and, in effect, to compel plaintiff to accept her answer. In her proposed answer, defendant asserted as a defense to the partition action that the finding of divorce was not effective, as it was made in the absence of a final judgment awarding equitable distribution (see, Garcia v Garcia, 178 A.D.2d 683; Sullivan v Sullivan, 174 A.D.2d 862), and therefore the parties' tenancy by the entirety had not been severed. As an additional defense, defendant asserted that she occupied the former marital residence pursuant to a temporary grant of exclusive possession made during the parties' divorce action. Supreme Court denied the motion, finding that defendant failed to demonstrate a meritorious defense. Defendant appeals.

In Sullivan v Sullivan (supra) and again in Garcia v Garcia (supra), we dismissed an appeal from a judgment which only granted a divorce but failed to make an award of equitable distribution pursuant to Domestic Relations Law § 236 (B) (5), holding that such a judgment was "nonbinding, nonfinal and without legal effect" (Garcia v Garcia, supra).

Although we agree with Supreme Court's conclusion that our decisions in Sullivan v Sullivan (supra) and Garcia v Garcia (supra) should not be retroactively applied to invalidate the parties' judgment of divorce, we must, nevertheless, reverse. Supreme Court improvidently exercised its discretionary authority under CPLR 3012 (d) by denying defendant's motion solely on the ground that she failed to demonstrate a meritorious defense (see, American Sec. Ins. Co. v Williams, 176 A.D.2d 1094; see also, Better v Town of Schodack, 169 A.D.2d 965; Continental Cas. Co. v Cozzolino Constr. Corp., 120 A.D.2d 779). Supreme Court should have considered the circumstances of the default.

The delay occurred as a result of law office failure, occasioned by defense counsel's assumption that communication of a request for an extension of time to his adversary's office was sufficient to avoid default. Absent confirmation of the extension, counsel should have served a timely answer and then amended the pleading to cure any deficiencies. Plaintiff's counsel acknowledged receipt of the request for an extension, but offered no explanation for the failure to respond in a timely fashion. In the interest of justice, we accept law office failure as a reasonable excuse for the delay (see, CPLR 2005) under these circumstances and, finding no prejudice to plaintiff, grant the application. Defendant's answer shall be deemed served upon entry of this Court's order.

As previously noted, we have determined that our decisions in Sullivan and Garcia should not be given retroactive effect because they represented "a sharp break" from our prior practice (Gager v White, 53 N.Y.2d 475, 483, cert denied sub nom. Guertin Co. v Cachat, 454 U.S. 1086) of considering appeals from judgments which bifurcated divorce from equitable distribution (see, e.g., McKilligan v McKilligan, 156 A.D.2d 904). Giving retroactive effect to Sullivan and Garcia will "`wreak * * * havoc'" by destabilizing divorce judgments long considered final (Gager v White, supra, at 483). Thus, we find it appropriate to direct that these decisions operate prospectively from December 5, 1991, the date of our decision in Garcia. On that date, we unequivocally reiterated the rule that a divorce judgment which fails to make an award of equitable distribution is "nonbinding, nonfinal and without legal effect" (Garcia v Garcia, supra).

Although it is not necessary for the resolution of this appeal, to avoid unnecessary litigation in the matter, we find that any temporary order of exclusive possession of the former marital residence terminated when the instant divorce action ended, upon entry of judgment (cf., Weaver v Weaver, 72 A.D.2d 221, 223). Furthermore, once the judgment of divorce was entered, the tenancy by the entirety that existed between the parties was converted into a tenancy in common, permitting plaintiff to bring the instant action for partition under RPAPL 901 (1) (see, Givens v Givens, 138 A.D.2d 348; McNally v McNally, 129 A.D.2d 686, 687; Ripp v Ripp, 38 A.D.2d 65, 67, affd 32 N.Y.2d 755), subject to any other defenses and/or appropriate counterclaims.

MIKOLL, CREW III and WEISS, JJ., concur.

Ordered that the order is reversed, on the law and the facts, with costs, and motion granted.

BUSA v. BUSA