Heinz v. Faljean

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2008
• Status: Published

Opinion

Contrary 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.