Sharpe v. Sharpe

— Order unanimously reversed on the law without costs and defendant’s motion granted. Memorandum: Special Term erred in denying defendant’s motion to vacate a default judgment in an action to rescind a separation agreement incorporated but not merged in a preequitable distribution divorce decree. Defendant’s failure to appear for trial was excusable. Moreover, it is apparent from the motion papers that there is merit to defendant’s defense to plaintiff’s request for alimony in the rescission action (see, Math v Math, 39 AD2d 583, affd 31 NY2d 693; Moran v Moran, 81 AD2d 740, 741; Matter of Mammon v Mammon, 54 AD2d 762). Upon defendant’s return to the United States in April 1989, the matter should be scheduled for trial and proceed forthwith. (Appeal from order of Supreme Court, Oneida County, Lynch, J. — set aside default judgment.) Present — Dillon, P. J., Callahan, Denman, Green and Lawton, JJ.