In re Wyleed M.

59 A.D.3d 176, 873 N.Y.S.2d 34

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2009
• Status: Published

Opinion

Order, Family Court, New York County (Jody Adams, J.), entered on or about October 24, 2007, which denied respondent father’s motion to vacate, inter alia, an order of disposition, same court and Judge, entered on or about April 23, 2007, which, upon respondent’s default, inter alia, transferred the custody and guardianship of the subject children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs. Order, same court and Judge, entered on or about November 14, 2007, which denied respondent’s motion to restore the action to the calendar, unanimously affirmed, without costs.

Respondent’s initial motion to set aside the default was properly denied since respondent failed to offer a reasonable excuse for his failure to appear at the dispositional hearing (see e.g. Matter of Jones, 128 AD2d 403, 404 [1987]). The record belies respondent’s claim that he never received notice of the proceeding. Respondent’s subsequent motion to restore the matter to the calendar was also properly denied as respondent’s proffered excuse for his nonattendance at the hearing on the initial motion, that he went to the wrong floor of the courthouse on the day the motion was heard, was also not reasonable, particularly in light of respondent’s history of failing to appear at previously scheduled proceedings. Concur—Mazzarelli, J.P., Moskowitz, Renwick and Freedman, JJ.