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Jones v. Stewart

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 9, 2009

IN THE MATTER OF DARYL JONES, RESPONDENT,
v.
DENISE STEWART, APPELLANT.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (O'Shea, J.), dated April 4, 2008, which denied her motion to vacate an order of the same court dated October 1, 2007, which, upon her default in appearing at a hearing, awarded custody of the subject children to the father.

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.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, CHERYL E. CHAMBERS and LEONARD B. AUSTIN, JJ.

(Docket Nos. V-35323-05, V-35324-05)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The mother's contention that the court erred in denying her motion to vacate the order awarding custody to the father is without merit. A party seeking to vacate an order entered upon his or her default must establish that there was a reasonable excuse for the default and a meritorious defense to the relief sought in the petition (see Matter of Princess M., 58 AD3d 854; Matter of Atkin v Atkin, 55 AD3d 905). Although the mother established that she had a reasonable excuse for her default, she failed to establish that she had a meritorious defense. Therefore, the Family Court properly denied her motion to vacate the order awarding custody to the father.

MASTRO, J.P., MILLER, CHAMBERS and AUSTIN, JJ., concur.

20090609

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