Hurston v. Southlea

91 A.D.3d 952, 937 N.Y.2d 607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2012
• Status: Published

Opinion

The Family Court providently exercised its discretion in denying the father’s motion to vacate the order of disposition entered December 26, 2002, upon his default in appearing at a hearing. A party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015 [a] [1]; Matter of Morales v Marma, 88 AD3d 722, 722 [2011]; Matter of Petulla v Petulla, 85 AD3d 925, 926 [2011]). “ ‘The determination whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court’ ” (Matter of Cassidy Sue R., 58 AD3d 744, 745 [2009], quoting Matter of Francisco R., 19 AD3d 502, 502 [2005]; see Matter of Tenisha Tishonda T., 302 AD2d 534, 534 [2003]). Here, the father failed to establish a reasonable excuse for his default (see Matter of Joosten v Joosten, 32 AD3d 1030, 1030 [2006]; Matter of Lutz v Goldstone, 31 AD3d 449, 450 [2006]; Matter of Oliphant v Oliphant, 21 AD3d 376 [2005]).

The father’s remaining contentions either are without merit, refer to matter dehors the record, or are otherwise not properly before this Court. Angiolillo, J.E, Dickerson, Austin and Cohen, JJ., concur.