Opinion
02-20-2024
In the Matter of HEIDI A., Petitioner–Respondent, v. ROGER C., Respondent–Appellant.
Bruce A. Young, New York, for appellant. Sanctuary for Families, New York (Luba Reife of counsel) and Weil Gotschal & Manges LLP, New York (Richard A. Rothman of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Bruce A. Young, New York, for appellant.
Sanctuary for Families, New York (Luba Reife of counsel) and Weil Gotschal & Manges LLP, New York (Richard A. Rothman of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Kern, J.P., Singh, Scarpulla, O’Neill Levy, Michael, JJ.
Order, Family Court, New York County (Gigi N. Parris, J.), entered on or about April 27, 2022, which denied respondent’s motion to vacate an order finding, upon his default, that he committed family offenses against petitioner and granting an order of protection in favor of petitioner and their child, unanimously affirmed, without costs.
Respondent’s motion to vacate his default was properly denied because he failed to establish a reasonable excuse for his failure to appear at the hearing and a potentially meritorious defense to the family offense petition (see CPLR 5015[a][1]; Matter of Desiree P. v. Michael L., 194 A.D.3d 494, 495, 143 N.Y.S.3d 547 [1st Dept. 2021]). Respondent’s claim that he was unaware that he needed to appear for the hearing is not a reasonable excuse for his default. The record establishes that respondent was acting as his own attorney at his insistence and was present when the date and time was selected for the hearing, and it was his responsibility to verify the date with his legal advisor or Family Court (see Matter of Sharon M. v. Elmer Gabriel M., 217 A.D.3d 415, 415–416, 190 N.Y.S.3d 41 [1st Dept. 2023]; Matter of Krystal R. v. Kriston L., 177 A.D.3d 445, 446, 112 N.Y.S.3d 51 [1st Dept. 2019]). Furthermore, respondent presented no evidence as to what measures he took to ensure that he was kept apprised as to when the hearing would commence by contacting his legal, advisor or the court (see Matter of Roberto O. [Lakeysha H.], 166 A.D.3d 435, 435–436, 88 N.Y.S.3d 157 [1st Dept. 2018]; Matter of Christina McK v. Kyle S., 154 A.D.3d 548, 62 N.Y.S.3d 261 [1st Dept. 2017]).
Since respondent failed to demonstrate a reasonable excuse for his default, this Court need not determine whether he proffered a meritorious defense (see Matter of Krystal R. v. Kriston L., 177 A.D.3d at 446, 112 N.Y.S.3d 51).