Atkin v. Atkin

55 A.D.3d 905, 865 N.Y.S.2d 577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2008
• Status: Published

Opinion

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (O’Shea, J.), dated October 1, 2007, which denied her motion to vacate an order of the same court dated September 17, 2007, which, upon her default in appearing at a hearing, granted the father’s petition to modify the parties’ judgment of divorce to award him sole custody of the parties’ child.

Ordered that the order is affirmed, without costs or disbursements.

The determination of whether to relieve a party of an order entered upon his or her default is within the sound discretion of the Family Court (see Matter of Coates v Lee, 32 AD3d 539 [2006]; Matter of Vanessa F., 9 AD3d 464, 464-465 [2004]). A party seeking to vacate such an order must establish that there was a reasonable excuse for the default and a meritorious defense to the petition (see CPLR 5015 [a] [1]; Matter of Coates v Lee, 32 AD3d 539 [2006]). We agree with the Family Court that the mother’s conclusory, unsupported allegations failed to demonstrate a meritorious defense to the father’s petition (see Matter of Coates v Lee, 32 AD3d 539 [2006]; Matter of Shirley C., 145 AD2d 631, 632 [1988]).

The mother’s remaining contentions are without merit. Rivera, J.P., Lifson, Miller and Eng, JJ., concur.