Opinion
6787
06-07-2018
In re MATTHEW C., Petitioner–Respondent, v. ROBIN B., Respondent–Appellant.
Douglas H. Reiniger, New York, for appellant. Leslie S. Lowenstein, Woodmere, for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Douglas H. Reiniger, New York, for appellant.
Leslie S. Lowenstein, Woodmere, for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Manzanet–Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.
Order, Family Court, New York County (J. Machelle Sweeting, J.), entered on or about February 27, 2017, which granted petitioner a final order of sole legal and physical custody of the subject child, unanimously affirmed, without costs. Respondent failed to demonstrate a reasonable excuse for her default (see CPLR 5015[a][1] ; Matter of Commissioner of Social Servs. of the City of N.Y. v. Juan H.M., 128 A.D.3d 501, 9 N.Y.S.3d 246 [1st Dept. 2015] ). She presented no evidence to substantiate her alleged lack of funds to travel to New York City to appear at the hearing (see Matter of Isaac Howard M. [Fatima M.], 90 A.D.3d 559, 560, 936 N.Y.S.2d 11 [1st Dept. 2011], lv dismissed in part, denied in part 18 N.Y.3d 975, 944 N.Y.S.2d 476, 967 N.E.2d 701 [2012] ). She failed to timely contact the court to inform it of her unavailability, and she failed to make herself available by telephone at the time the case was called. Instead, she went about her day, as scheduled, including attending a physical therapy appointment, and waited until after the case was called and adjudicated in her absence to make contact with the court (see Matter of Zion Nazar H–S. [Shaniqua W.], 122 A.D.3d 486, 997 N.Y.S.2d 43 [1st Dept. 2014] ).
In the absence of a reasonable excuse for her default, we need not determine whether respondent demonstrated a meritorious defense to the petition for custody ( Matter of Ne Veah M. [Michael M.], 146 A.D.3d 673, 674, 45 N.Y.S.3d 455 [1st Dept. 2017] ). We note in any event that respondent's claims that the child had spent most of her life with respondent, had more closely bonded with her than with petitioner, and wished to live with her, and that the child was struggling in school in New York City were unsubstantiated (see Matter of Gloria Marie S., 55 A.D.3d 320, 321, 865 N.Y.S.2d 68 [1st Dept. 2008], lv dismissed 11 N.Y.3d 909, 873 N.Y.S.2d 523, 901 N.E.2d 1275 [2009] ; and see Matter of Christian E., 66 A.D.3d 433, 887 N.Y.S.2d 18 [1st Dept. 2009] ). Moreover, these claims were belied by petitioner's testimony and the report of the court-ordered investigation, which the court considered.