In re Samuel V.S.

89 A.D.3d 566, 933 N.Y.2d 243

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2011
• Status: Published

Opinion

A party seeking to vacate 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 Atkin v Atkin, 55 AD3d 905 [2008]). Without reaching the question of whether or not the mother had a reasonable excuse for default, we find that the court properly denied the mother’s motion because she failed to set forth a meritorious defense. The record demonstrates that the mother suffers from either borderline personality disorder or a not otherwise specified personality disorder, that she committed multiple acts of domestic violence upon the father in the child’s presence and threatened to kill the child, thereby impairing or creating an imminent danger of impairing the child’s physical, emotional or mental well-being (see Matter of Davion A. [Marcel A.], 68 AD3d 406 [2009]). The mother’s submission, consisting solely of an affirmation from her counsel, was insufficient because it contained conclusory assertions and was not from an individual who had personal knowledge of the facts. No basis exists for disturbing the court’s credibility determinations, which are entitled to great deference (see Matter of Daquan D., 18 AD3d 363, 364 [2005]).

We have considered the appellant’s additional arguments and find them unpersuasive or unpreserved. Concur — Mazzarelli, J.P, Friedman, Catterson, Moskowitz and Abdus-Salaam, JJ.