The following e-filed documents, listed by NYSCEF document number (Motion 003) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for MISCELLANEOUS.

In this motion, Defendant seeks to reargue and/or renew plaintiff's Orders to Show Cause dated August 19, 2021 and February 24, 2022, to vacate the November 9, 2021 Order issued on default, an award of pendente lite spousal and child support based on Defendant's actual income, to amend his verified answer and counterclaim, and to correct the caption of this case to reflect the accurate spelling of defendant's last name, to wit: "[Redacted]"

The parties were married on November 4, 2005. This action was commenced on July 29, 2021. There are two children born of the marriage, to wit: A. F. born XX XX, 2000, and S. F. [*2]born XX XX, 2007.

On July 29, 2021, Plaintiff filed a Summons and Complaint. The caption of the divorce action incorrectly spells Defendant's last name as "[Redacted]." The Summons and Complaint incorrectly states Defendant resides in [Redacted]. Defendant failed to appear and failed to submit an answer.

On August 18, 2021, Plaintiff filed an Order to Show Cause for pendente lite relief. Defendant claims he was not personally served and received notice of the Order to Show Cause from a coworker. On October 15, 2020, Plaintiff's attorney emailed the court to adjourn the appearance to November 9, 2021 and, according to Defendant, did not provide notice to Defendant's correct email address. Defendant did not receive notice from the Court, Plaintiff's attorney or Defendant's prior counsel. Defendant did not appear, and Plaintiff was then awarded interim relief on default.

On February 24, 2022, Plaintiff filed an Order to Show Cause for contempt and a money Judgement. Defendant's attorney filed an Affirmation and Affidavit in Opposition. All parties were present at the April 1, 2022 return date. After oral argument the Court issued an Order dated April 4, 2022 and an Amended Order dated May 5, 2022 granting a money Judgement for the Plaintiff and denying Defendant's relief sought.

Defendant moved out of the marital apartment and relocated to [New Jersey address], where he has lived for the past five years. Plaintiff stated that Defendant's address was [Pennsylvania address] in the complaint. Plaintiff also filed an Order to Show Cause, RJI and RJI Addendum on August 18, 2021. Defendant was not personally served the Order to Show Cause nor the Summons and Complaint. Defendant received a copy of the Order to Show Cause from an employee on August 30, 2021.

Subsequently, Defendant retained the office of the [Redacted] and experienced difficulty communicating with his attorney and was not made aware of future court appearances. On October 15, 2021, Plaintiff's attorney requested an adjourn date of November 9, 2021 and did not use Defendants correct email address in the court communications. As a result, Defendant did not appear virtually to the scheduled appearance and was unable to submit opposition to the Order to Show Cause and the Court granted an Order on default. Defendant received a copy of the Decision and Order at his New Jersey address.

Defendant then attempted to reach out to his retained counsel but no action was taken to challenge the Order. Plaintiff filed an Order to Show Cause for contempt and a money judgement on February 24, 2022. Defendant and Counsel filed opposition papers but not a counterclaim and upon oral argument the Court issued a written Order granting the Money Judgement. Defendant was not given proper notice of the appearances in connection to Plaintiff's filings because they were sent to the incorrect mailing and electronic mail address.

A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (Bank of Am., N.A. v. Murjani, 199 AD3d 630, 631, 153 N.Y.S.3d 887; see CPLR 5015[a][1]). Defendant raises various concerns about his lack of notice of the court appearances and failures by former counsel, as submitted on the motion. Specifically, he claims that Plaintiff did not serve him at his New Jersey address; Plaintiff did not personally serve him with the Complaint dated July 29, 2021, and Motion for Pendente Lite Relief dated August 18, 2021, and [*3]Defendant was not afforded the opportunity to appear or submit responses. Further, he contends that his prior counsel failed to notify him of any appearance and failed to submit response papers. Plaintiff's counsel also did not include Defendants correct email address [Redacted] when requesting to change the appearance date to November 9, 2021 and Defendant was not afforded the opportunity to appear before the Court.

The court finds that a combination of law office failure and inadequate notice of the adjourn date resulted in missed appearances and opportunities to submit documents with the court. The court also finds that discrepancies regarding Defendant's address found within the Summons with Notice resulted in Defendant lack of notice. This constitutes a reasonable excuse for the default. The Court notes that these specific arguments and facts were not raised in the previous motion sequence. In sum, Defendant's request to re-argue/renew is granted and the Order on Default Dated November 9, 2021, shall be vacated.

Upon reargument, the Court will consider the calculations of support and other relief granted in the November 9, 2021 order.

Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties' incomes, based on the parties' most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]). After this determination is made, the court must then perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award. Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, must be done according to a series of factors.

DRL § 236(B)(5-a) calls for the parties' income to be determined by their most recent tax returns. According to the Plaintiff's 2020 tax return Plaintiff earned an adjusted gross income of $5,600. According to the Defendant's 2020 tax returns Defendant earned an adjusted gross income of $87,301 and a gross profit from business of $823,190. In addition, Defendant has also received two (2) PPP loans in the amount of $103,000 and for $30,000. Defendant has not fully submitted all financial documents to the court and further documents and proof are needed to establish his true income. However, the Court previously estimated Defendant's income to be $200,000 annually. This was and continues to be a fair estimate or imputation of income based on the evidence put forth before the Court. Notably, the Court does not have to accept Defendant's own accounting of his income. Accordingly, the Court deems his income to be $200,000 for purposes of interim support calculations.

Thus, utilizing the above incomes for the parties and applying the formula for temporary maintenance results in $2,908.50 in interim maintenance. Accordingly, the Defendant is directed to pay $2,908.50 per month as interim maintenance retroactive to August 19, 2021, the original date of application.

In awarding temporary child support, the Court can but is not required to consider the CSSA guidelines (see DRL 240 [1-b][c]; Rubin v. Salla, 78 AD3d 504, 505 [1st Dept 2010]). Pursuant to the CSSA, to calculate the presumptive award of child support, the Court must first determine the combined parental income. Plaintiff's annual income for child support purposes is $5,600. The Defendant's annual income for child support purposes is going to be $200,000 until the Court is provided with further financial documentation.

Using these incomes and applying the CSSA guidelines to the parties combined income up to $186,164.08 (which accounts for permitted deductions) results in a child support obligation to Defendant of $2,069.56 for one child. The Court believes it is appropriate to adjust the cap considering the financial resources available to each parent, the standard of living the child would have enjoyed had the marriage continued, and the fact that the Plaintiff's gross income is substantially less than that of Defendant.

Therefore, Defendant is directed to pay $2,069.56 per month as temporary child support retroactive to August 19, 2021, the date of the application. The Plaintiff is also directed to pay 20% and Defendant is directed to pay 80% of the child's add-ons, which are subject to reallocation at trial.

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). There is a rebuttable presumption that fees are awarded to the less monied spouse.

In considering an award of counsel fees, the Court considers the disparity in the parties' income. The court also notes the business Defendant has and the recent PPP loans he obtained. The Court takes various the factors above into consideration and finds it reasonable to award Plaintiff counsel fees in the amount of $15,000, without prejudice to further application as appropriate.

Regarding the incorrect spelling of Defendant's last name in the caption as "[Redacted]" This issue of Defendant's name change was consented to on the record by both parties. The caption will be corrected to read "[Redacted]"

Defendant seeks leave to amend his answer to correct his address and to revise the relief he seeks in the action. Leave to amend is given freely (see CPLR 3025[b]). Given the lack of specific opposition to this request or any prejudice to Plaintiff, Defendant's request to amend the Verified Answer and Counterclaim shall be granted.

A number of issues in the default order have not been addressed by the parties. These include granting Plaintiff exclusive use and occupancy of the marital residence and directing the Defendant to maintain and/or secure a life insurance policy for no less than $500,000, with Plaintiff and the minor child as the beneficiaries. These are not at issue and the court shall continue/include this relief in this order.

Accordingly, it is

ORDERED upon consent of the parties and as agreed to on record, the caption shall be changed to reflect the correct spelling of Defendant's last name: "[Redacted]"; and it is further

ORDERED Defendant's application for leave to amend his verified answer and counterclaim is granted; and it is further

ORDERED the Order on Default dated November 9, 2021 shall be vacated; and it is further

ORDERED that the motion to reargue/renew is granted and upon reargument; and it is further

ORDERED that on the 1st of each month Defendant shall pay to Plaintiff temporary maintenance in the amount of $2,908.50 per month retroactive to August 19, 2021, the date of [*4]application; and it is further

ORDERED that on the 1st of each month Defendant shall pay to Plaintiff temporary child support in the amount of $2,069.56 per month retroactive to August 19, 2021, the date of application; and it is further

ORDERED that Defendant shall pay any support arrears owed within 45 days of this Order; and it is further

ORDERED Plaintiff shall pay 20% and Defendant shall pay 80% of the child's add-on expenses; and it is further

ORDERED Defendant shall maintain and/or secure a life insurance policy for no less than $500,000, with Plaintiff and the minor child as the beneficiaries; and it is further

ORDERED that within 20 days of this order Defendant shall pay plaintiff's counsel $15,000 as for interim counsel fees.

This constitutes the Decision and Order of the Court.