Opinion
2018–10433 Docket No. O–4825–17
07-17-2019
In the Matter of Gabrielle G. MORENO, Respondent, v. Hector RAMOS, Appellant.
Del Atwell, East Hampton, NY, for appellant. Joseph Petito, Poughkeepsie, NY, for respondent.
Del Atwell, East Hampton, NY, for appellant.
Joseph Petito, Poughkeepsie, NY, for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, Hector Ramos appeals from an order of the Family Court, Dutchess County (Joan S. Posner, J.), dated August 15, 2018. The order denied his motion pursuant to CPLR 5015(a)(1) to vacate an order of protection that was entered against him, after an inquest, upon his default in appearing for a scheduled court date.
ORDERED that the order is affirmed, without costs or disbursements.
In this family offense proceeding, which was commenced by the appellant's step-daughter, the Family Court issued an order of protection against the appellant and in favor of the petitioner, after an inquest, upon the appellant's failure to appear for a scheduled court date. The appellant thereafter moved pursuant to CPLR 5015(a)(1) to vacate the order of protection on the ground of excusable default. In an order dated August 15, 2018, the Family Court denied his motion on the ground, inter alia, that it was supported solely by an affirmation from his counsel, who did not have personal knowledge of the facts constituting the appellant's proffered excuse. We affirm.
"A respondent seeking to vacate an order of protection entered upon his or her failure to appear on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition" ( Matter of McKinney v. Jones , 151 A.D.3d 973, 973, 54 N.Y.S.3d 304 ; see CPLR 5015[a][1] ; Matter of Ignatieva v. Sullivan , 169 A.D.3d 680, 680–681, 91 N.Y.S.3d 724 ). Here, the appellant did not submit any affidavit based on personal knowledge in support of his motion to vacate his default, and thus did not demonstrate a reasonable excuse for his failure to appear on the scheduled court date (see Dae Hyun Chung v. Google, Inc. , 153 A.D.3d 494, 495, 59 N.Y.S.3d 465 ; Buchakian v. Kuriga , 138 A.D.3d 711, 713, 28 N.Y.S.3d 724 ; Northern Source, LLC v. Kousouros , 106 A.D.3d 571, 572, 966 N.Y.S.2d 377 ; Incorporated Vil. of Hempstead v. Jablonsky , 283 A.D.2d 553, 554, 725 N.Y.S.2d 76 ). Since the appellant failed to demonstrate a reasonable excuse for his default, we need not reach the issue of whether he demonstrated a potentially meritorious defense (see Zovko v. Quittner Realty, LLC , 162 A.D.3d 1102, 1104, 80 N.Y.S.3d 112 ; Bernstein v. Geiss , 111 A.D.3d 774, 775, 975 N.Y.S.2d 168 ).
MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.