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In re Wyleed M.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 5, 2009

IN RE WYLEED M., AND OTHERS DEPENDANT CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND SAID M., RESPONDENT-APPELLANT,
v.
JEWISH CHILD CARE ASSOCIATION OF NEW YORK, PETITIONER-RESPONDENT.

Order, Family Court, New York County (Jody Adams, J.), entered on or about October 24, 2007, which denied respondent father's motion to vacate, inter alia, an order of disposition, same court and Judge, entered on or about April 23, 2007, which, upon respondent's default, inter alia, transferred the custody and guardianship of the subject children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs. Order, same court and Judge, entered on or about November 14, 2007, which denied respondent's motion to restore the action to the calender, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Moskowitz, Renwick, Freedman, JJ.

Respondent's initial motion to set aside the default was properly denied since respondent failed to offer a reasonable excuse for his failure to appear at the dispositional hearing (see e.g. Matter of Jones, 128 AD2d 403, 404 [1987]). The record belies respondent's claim that he never received notice of the proceeding. Respondent's subsequent motion to restore the matter to the calendar was also properly denied as respondent's proffered excuse for his nonattendance at the hearing on the initial motion, that he went to the wrong floor of the courthouse on the day the motion was heard, was also not reasonable, particularly in light of respondent's history of failing to appear at previously scheduled proceedings.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090205

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