Jose L. v. Yamely H.

Appellate Division of the Supreme Court of New York

Jose L. v. Yamely H.

91 A.D.3d 544, 937 N.Y.2d 50

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 2012

StatusPublished

This text of 91 A.D.3d 544 (Jose L. v. Yamely H.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jose L. v. Yamely H., 91 A.D.3d 544, 937 N.Y.2d 50 (N.Y. Ct. App. 2012).

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Opinion

In support of her motion to vacate her default on petitioner’s application for custody of the parties’ son, respondent offered the excuse that she was not served with the custody petition— she stated that she was working on the morning that it purportedly was served — and that petitioner had misrepresented to her that she need not appear on her family offense petition against him because they would resolve it out of court, when unbeknownst to her that petition was returnable on the same day as the custody petition. Contrary to Family Court, we find this a reasonable excuse for the default (CPLR 5015 [a] [1]; see Royall v Royall, 105 AD2d 632 [1984]). We note that petitioner did not file for custody until the day after he was served with respondent’s family offense petition, the one he told her they would resolve out of court. He then advised the court, when respondent did not appear, that he did not know where she was.

Respondent also demonstrated a meritorious defense to the [545]*545custody petition. The custody order states that petitioner “report[ed]” that respondent had taken their son out of the country without his permission. However, respondent submitted evidence that petitioner had given his consent in writing, and without imposing a time limit. Under the circumstances, the issue of custody should be determined on the merits (see Matter of Precyse T., 13 AD3d 1113, 1113-1114 [2004]). Concur — Tom, J.E, Friedman, DeGrasse, Richter and Manzanet-Daniels, JJ.

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In support of her motion to vacate her default on petitioner’s application for custody of the parties’ son, respondent offered the excuse that she was not served with the custody petition— she stated that she was working on the morning that it purportedly was served — and that petitioner had misrepresented to her that she need not appear on her family offense petition against him because they would resolve it out of court, when unbeknownst to her that petition was returnable on the same day as the custody petition. Contrary to Family Court, we find this a reasonable excuse for the default (CPLR 5015 [a] [1]; see Royall v Royall, 105 AD2d 632 [1984]). We note that petitioner did not file for custody until the day after he was served with respondent’s family offense petition, the one he told her they would resolve out of court. He then advised the court, when respondent did not appear, that he did not know where she was.

Respondent also demonstrated a meritorious defense to the [545]*545custody petition. The custody order states that petitioner “report[ed]” that respondent had taken their son out of the country without his permission. However, respondent submitted evidence that petitioner had given his consent in writing, and without imposing a time limit. Under the circumstances, the issue of custody should be determined on the merits (see Matter of Precyse T., 13 AD3d 1113, 1113-1114 [2004]). Concur — Tom, J.E, Friedman, DeGrasse, Richter and Manzanet-Daniels, JJ.

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91 A.D.3d 544, 937 N.Y.2d 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jose-l-v-yamely-h-nyappdiv-2012.

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