Opinion
2011-08-30
In the Matter of Josie May WEINTROB, respondent,v.Gary WEINTROB, appellant.
Herman Kaufman, Port Chester, N.Y., for appellant.
Motion by the appellant for leave to reargue an appeal from an order of the Family Court, Kings County (Freeman, J.), dated December 18, 2009, which was determined by decision and order of this Court dated February 15, 2011.
Upon the papers filed in support of the motion, and no papers having been filed in opposition or relation thereto, it is
ORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated February 15, 2011 ( Matter of Weintrob v. Weintrob, 81 A.D.3d 840, 916 N.Y.S.2d 627), is recalled and vacated, and the following decision and order is substituted therefor:
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Freeman, J.), dated December 18, 2009, which denied his objections to so much of an order of the same court (Mayeri, S.M.), dated June 8, 2009, as, after a hearing, denied that branch of his motion which was to vacate an order of the same court dated August 14, 2006, which, upon his default in appearing at a hearing, granted the mother's petition and set his child support obligation at the sum of $2,600 per month.
ORDERED that the order dated December 18, 2009, is affirmed, without costs or disbursements.
That branch of the father's motion which was to vacate a child support order dated August 14, 2006, on the basis of excusable default should have been made within one year of service upon him of a copy of the order, with notice of its entry ( see CPLR 5015[a]; Matter of Wrighton v. Wrighton, 23 A.D.3d 669, 805 N.Y.S.2d 101; Matter of Bykya Minnie E., 212 A.D.2d 365, 366, 622 N.Y.S.2d 256). A party to a Family Court proceeding seeking to vacate an order entered upon default must establish that there was a reasonable excuse for the default and a potentially meritorious defense ( see Matter of Proctor–Shields v. Shields, 74 A.D.3d 1347, 1348, 904 N.Y.S.2d 183; Ito v. Ito, 73 A.D.3d 983, 900 N.Y.S.2d 665; Diaz v. Diaz, 71 A.D.3d 947, 896 N.Y.S.2d 891).
Since the father made his motion to vacate the order dated August 14, 2006, more than one year after the service upon him of a copy of that order, with notice of its entry, that branch of his motion which was to vacate that order on the basis of excusable default was properly denied as untimely. Moreover, although the Supreme Court has the inherent authority to vacate an order in the interest of justice even where the statutory one-year period under CPLR 5015(a)(1) has expired, here, the father failed to demonstrate a reasonable excuse for his delay in moving to vacate the order, and failed to demonstrate a reasonable excuse for his failure to appear in court on August 14, 2006, to defend against the mother's petition for an award of child support ( see
santiago v. honcrat, 79 A.D.3d 847, 848, 912 N.Y.S.2d 419; Valentin v. City of New York, 73 A.D.3d 755, 756, 899 N.Y.S.2d 651). Accordingly, the Family Court providently exercised its discretion in denying the father's objection to an order of a Support Magistrate dated June 8, 2009, denying that branch of his motion which was to vacate the child support order dated August 14, 2006, entered upon his default ( see Matter of Proctor–Shields v. Shields, 74 A.D.3d at 1348, 904 N.Y.S.2d 183; Diaz v. Diaz, 71 A.D.3d 947, 896 N.Y.S.2d 891; Matter of Armstrong v. Doby, 69 A.D.3d 933, 934, 892 N.Y.S.2d 794; Matter of Conwell v. Booth, 66 A.D.3d 773, 887 N.Y.S.2d 602; Matter of Heinz v. Faljean, 57 A.D.3d 665, 666, 868 N.Y.S.2d 547).
In addition, and contrary to the father's contention, the Family Court had no authority to reduce or annul child support arrears accrued prior to his submission of an application to modify the order of child support, regardless of whether the father had good cause for having failed to seek modification of his child support obligation prior to the accumulation of those arrears ( see Family Ct. Act § 451; Matter of Dox v. Tynon, 90 N.Y.2d 166, 173–174, 659 N.Y.S.2d 231, 681 N.E.2d 398; Matter of Moore v. Abban, 72 A.D.3d 970, 972–973, 899 N.Y.S.2d 362; Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 875, 890 N.Y.S.2d 634; Matter of Wrighton v. Wrighton, 23 A.D.3d at 670, 805 N.Y.S.2d 101).
SKELOS, J.P., ENG, HALL and LOTT, JJ., concur.