Opinion
12-23-2016
In the Matter of Kelly NEUPERT, Petitioner–Respondent, v. Jason M. NEUPERT, Respondent–Appellant.
Deborah J. Scinta, Orchard Park, for Respondent–Appellant. Denis A. Kitchen, Jr., Williamsville, for Petitioner–Respondent. Kelly L. Ball, Attorney for the Children, Buffalo.
Deborah J. Scinta, Orchard Park, for Respondent–Appellant.
Denis A. Kitchen, Jr., Williamsville, for Petitioner–Respondent.
Kelly L. Ball, Attorney for the Children, Buffalo.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
Respondent father appeals from an order denying his motion to vacate an order, entered upon his default, that awarded petitioner mother sole custody of the parties' children and ended the father's visitation with the children.
We reject the father's contention that he did not receive notice of the default hearing. To the contrary, the record establishes that the notice Family Court mailed to the father was not returned, and that the father had actual knowledge of the hearing (see Matter of Strumpf v.
Avery, 134 A.D.3d 1465, 1466, 23 N.Y.S.3d 766 ; see also Matter of Geoffrey Colin D. v. Janelle Latoya A., 132 A.D.3d 438, 438, 17 N.Y.S.3d 404 ). We further conclude that the court did not abuse its discretion in denying the father's motion inasmuch as he failed to offer either a reasonable excuse for his default or a meritorious defense (see Strumpf, 134 A.D.3d at 1466, 23 N.Y.S.3d 766 ; see also Matter of Roshia v. Thiel, 110 A.D.3d 1490, 1491, 972 N.Y.S.2d 804, lv. dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 ).
The father's remaining contentions are not properly before this Court. "[I]t is well settled that no appeal lies from an order entered on default" (Matter of Bradley M.M. [Michael M.-Cindy M.], 98 A.D.3d 1257, 1258, 951 N.Y.S.2d 604 ; see generally Hines v. Hines, 125 A.D.2d 946, 946, 510 N.Y.S.2d 344 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.