Jenny F. v. Felix C.

Full title: In re Jenny F., Petitioner-Respondent, v. Felix C., Respondent-Appellant.

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 2, 2014

121 A.D.3d 413 (N.Y. App. Div. 2014)

2014 N.Y. Slip Op. 6661

993 N.Y.S.2d 698

Opinion

13106 13105

10-02-2014

In re Jenny F., Petitioner-Respondent, v. Felix C., Respondent-Appellant.

Douglas H. Reiniger, New York, for appellant. Geoffrey P. Berman, Larchmont, for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the child.

Gonzalez, P.J.

, Saxe, Richter, Feinman, Kapnick, JJ.

Douglas H. Reiniger, New York, for appellant.

Geoffrey P. Berman, Larchmont, for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the child.

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about February 22, 2013, which denied respondent father's motion to vacate a five-year order of protection entered after an inquest conducted upon his default, unanimously affirmed, without costs. Appeal from order of protection, same court and Judge, entered on or about December 3, 2012, unanimously dismissed, without costs, as taken from a nonappealable paper.

Respondent failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]; see e.g. Matter of Yadori Marie F. [Osvaldo F.]), 111 AD3d 418, 419 [1st Dept 2013]). His contention that he "totally forgot" about the hearing date and thought his employer would remind him of the date is unreasonable. Respondent was present during the scheduling of the hearing and it was his responsibility to ensure that he appeared on the scheduled date (see e.g. Matter of Yadori, 111 AD3d at 419). Further, the court properly denied his counsel's request for an adjournment, as counsel failed to offer any explanation for respondent's absence (Matter of Keith H. [Logann M.K.], 113 AD3d 555, 556 [1st Dept 2014], lv denied 23 NY3d 902 [2014]). Since respondent failed to offer a reasonable excuse for his default, we need not determine whether he offered a meritorious defense to the family offense petition (see Yadori, 111 AD3d at 419).

No appeal lies from the order of protection, which was entered upon respondent's default (CPLR 5511; see e.g. Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]).

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

ENTERED: OCTOBER 2, 2014

CLERK