Christina McK v. Kyle S.

Full title: In re Christina McK. Petitioner-Respondent, v. Kyle S.…

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

Date published: Oct 19, 2017

2017 N.Y. Slip Op. 7323 (N.Y. App. Div. 2017)

62 N.Y.S.3d 261

Opinion

4739

10-19-2017

In re Christina McK. Petitioner-Respondent, v. Kyle S., Respondent-Appellant.

Neal D. Futerfas, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent. Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child.

Manzanet-Daniels, J.P., Mazzarelli, Moskowitz, Kahn, Kern, JJ.

Neal D. Futerfas, White Plains, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent.

Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child.

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about June 10, 2016, which denied respondent's motion to vacate an order of filiation entered upon his default, unanimously affirmed, without costs.

The court properly exercised its discretion in denying the motion to vacate the default (see Matter of Tyieyanna L. [Twanya McK.], 94 AD3d 494, 494-495 [1st Dept 2012]; Matter of Jones, 128 AD2d 403, 404 [1st Dept 1987]). Respondent's claim that he did not appear at the December 11, 2015 hearing because he was under a mistaken belief as to the next hearing date was insufficient to establish a reasonable excuse and belied by the transcript of the October 2, 2015 hearing, which showed he was present when the next hearing date was selected and told by his counsel that he was required to appear (see Matter of Brittany J., 235 AD2d 310, 311 [1st Dept 1997], lv dismissed 89 NY2d 1086 [1997]; Bicknell v Bicknell, 214 AD2d 598, 598-599 [2d Dept 1995]). Respondent's failure to maintain contact with his attorney and to keep himself apprised of the status of the hearing date demonstrated that his default was due to his overall lack of attention to the proceeding (see Sheikh v New York City Tr. Auth., 258 AD2d 347, 348 [1st Dept 1999]).

Because respondent failed to proffer a reasonable excuse for his default, we need not determine whether there existed a meritorious defense to the petition (see Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428, 429 [1st Dept 2010], lv dismissed 15 NY3d 766 [2010]).

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

ENTERED: OCTOBER 19, 2017

CLERK