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In re Strickland

Supreme Court of New York, Second Department

October 16, 2013

In the Matter of Jason Strickland, respondent,
v.
Bernadine Lewis, appellant. Docket Nos. V-10731-11, V-10732-11

Peter Dailey, New York, N.Y., for appellant.

Robert Marinelli, New York, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Thomas R. Villecco and Barbara H. Dildine of counsel), attorney for the children.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from so much of an order of the Family Court, Kings County (Valme-Lundy, Ct. Atty. Ref.), dated September 19, 2012, as denied her motion to vacate an order of the same court dated August 7, 2012, made upon her failure to appear, granting the father's petition for custody of the subject children.

ORDERED that the order dated September 19, 2012, is affirmed insofar as appealed from, without costs or disbursements.

"The determination whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court" (Matter of Petulla v Petulla, 85 A.D.3d 925, 926 [internal quotation marks omitted]; see Matter of Cassidy Sue R., 58 A.D.3d 744, 745; Matter of Francisco R., 19 A.D.3d 502, 502; Matter of Tenisha Tishonda T., 302 A.D.2d 534, 534). "A party seeking to vacate such an order must establish that there was a reasonable excuse for the default and a potentially meritorious defense to the demand for relief sought in the petition" (Matter of Petulla v Petulla, 85 A.D.3d at 926; see CPLR 5015[a][1]; Matter of Cassidy Sue R., 58 A.D.3d at 745; Matter of Coates v Lee, 32 A.D.3d 539, 539; Matter of Francisco R., 19 A.D.3d at 502).

Here, the mother did not establish a reasonable excuse for her default or a potentially meritorious defense to the relief sought in the petition. Accordingly, the Family Court properly denied the mother's motion to vacate the order dated August 7, 2012, made upon her default in appearing.

SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.


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