ZZR Successful on Appeal in Frydrych v. Kolus

On December 13, 2018, Ziegler Zemsky & Resnick won another appeal on behalf of a client whose due process rights were violated when the trial court proceeded with a default judgment against him without first hearing his motion to vacate default.

Frydrych v. Kolus involved a case that lingered well beyond the one-year mark. A complicated divorce involving a family business for which the wife also worked, the case required extensive discovery and experts to evaluate the business and the parties’ lifestyle. As the case continued, the legal fees mounted and the business suffered. Eventually, the plaintiff husband was forced to represent himself due to his financial circumstances while at the same time suffering from illness. When he failed to appear for a case management conference (for which he had requested an adjournment) the trial court granted the defendant’s request to dismiss the plaintiff’s pleadings.

As a self-represented litigant, plaintiff did not understand the gravity of having his pleadings dismissed and attempted to continue participating in the litigation. When plaintiff realized that his only remedy lay in filing a motion to vacate default, he did so ten days before the default trial was held. Instead of hearing plaintiff’s motion to vacate default, however, the trial court proceeded with the default hearing and awarded defendant everything she requested by way of alimony, equitable distribution and counsel fees. The court noted that it would hear plaintiff’s motion to vacate default on its proper return date, nine days after the default hearing. On that date, the trial court denied the motion on the papers, noting that the case had lingered for almost 1,000 days.

On appeal, the Appellate Division found the trial court’s decision to hold the default hearing before hearing plaintiff’s motion to vacate “resulted in severe prejudice” to plaintiff. In so holding, the Appellate Division noted the trial court’s error was compounded by its failure to make particularized findings and its reliance on an outdated Case Information Statement that lacked supporting documentation. Finding that the trial court’s decision to proceed with the default hearing before hearing plaintiff’s motion to vacate default was plain error, the Appellate Division vacated the Judgment of Divorce and remanded to a different trial judge. This decision undoubtedly gives Mr. Frydrych a fair opportunity to meaningfully participate in his divorce case once more.

Based on the facts and circumstances at issue, we were pleased to secure for our client a right and just outcome.

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