Opinion
10752
01-09-2020
In re TONY U., Petitioner–Appellant, v. AMY J.P., et al., Respondents–Respondents.
Blank Rome LLP, New York (Lois J. Liberman of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Blank Rome LLP, New York (Lois J. Liberman of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Richter, J.P., Gische, Gesmer, Kern, Gonza´lez, JJ.
Order, Family Court, New York County (Emily M. Olshansky, J.), entered on or about December 5, 2017, which denied petitioner father's objections to an order, same court (Serena Rosario, Support Magistrate), entered on or about June 7, 2017, after a hearing, denying his motion to vacate a prior order, dated July 20, 2016, which dismissed his petition for a downward modification of child support due to his failure to appear, unanimously affirmed, without costs.
A party seeking to vacate a default order must demonstrate both a reasonable excuse and a potentially meritorious defense or claim ( CPLR 5015[a][1] ; Matter of Messiah G. [Giselle F.], 168 A.D.3d 420, 420, 91 N.Y.S.3d 43 [1st Dept. 2019], lv dismissed in part, denied in part 32 N.Y.3d 1212, 98 N.Y.S.3d 755, 122 N.E.3d 553 [2019] ). The father failed to demonstrate that he had a potentially meritorious claim for downward modification of the support order based on a medical disability or the child's emancipation. Although the father had been given multiple adjournments over the course of a year to obtain certified medical records and other competent evidence in support of his petition, he still had not obtained such evidence and was not ready to proceed on the day the proceeding was dismissed, even though the matter had been marked final for trial that day.
In denying the father's objections, the Family Court properly declined to consider the child's affidavit, certified medical records, and a financial disclosure affidavit, which had not been submitted with the motion to vacate the default or during the oral argument, and were presented for the first time with the objections (see Matter of Loveless v. Goldbloom, 141 A.D.3d 662, 663, 35 N.Y.S.3d 456 [2d Dept. 2016] ; Matter of Carene S. v. Kendall S., 96 A.D.3d 767, 768, 945 N.Y.S.2d 570 [2d Dept. 2012] ).
The denial of the requested adjournment was a provident exercise of discretion by the Family Court (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ).