Heinz v. Faljean

Appellate Division of the Supreme Court of New York

Heinz v. Faljean

57 A.D.3d 665, 868 N.Y.2d 547

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 2008·Published·Cited by 7 cases

Opinion

[666]*666Contrary to the father’s contention, the mother satisfied her burden of presenting prima facie evidence of nonpayment of child support (see Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). The burden then shifted to the father to offer competent, credible evidence of his inability to comply with the support order (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d at 69-70). The father, however, failed to appear for the hearing, and a finding of willfulness was properly entered on default.

Furthermore, the court properly denied the father’s motion to vacate the default. “A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense” (Dominguez v Carioscia, 1 AD3d 396, 397 [2003]; see Kaplinsky v Mazor, 307 AD2d 916 [2003]; O’Leary v Noutsis, 303 AD2d 664 [2003]; Silverman v Deutsch, 283 AD2d 478 [2001]). Here, the father failed to present a reasonable excuse for the default or a meritorious defense.

The father’s remaining contentions are without merit. Mastro, J.P., Rivera, Fisher and Eng, JJ., concur.

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[666]*666Contrary to the father’s contention, the mother satisfied her burden of presenting prima facie evidence of nonpayment of child support (see Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). The burden then shifted to the father to offer competent, credible evidence of his inability to comply with the support order (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d at 69-70). The father, however, failed to appear for the hearing, and a finding of willfulness was properly entered on default.

Furthermore, the court properly denied the father’s motion to vacate the default. “A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense” (Dominguez v Carioscia, 1 AD3d 396, 397 [2003]; see Kaplinsky v Mazor, 307 AD2d 916 [2003]; O’Leary v Noutsis, 303 AD2d 664 [2003]; Silverman v Deutsch, 283 AD2d 478 [2001]). Here, the father failed to present a reasonable excuse for the default or a meritorious defense.

The father’s remaining contentions are without merit. Mastro, J.P., Rivera, Fisher and Eng, JJ., concur.

Heinz v. Faljean, 57 A.D.3d 665, 868 N.Y.2d 547 (N.Y. Ct. App. 2008).

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57 A.D.3d 665 (Heinz v. Faljean) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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