Opinion
587 CAF 17–00525
06-14-2019
In the MATTER OF PATIENCE T. Erie County Department of Social Services, Petitioner–Respondent; v. Christopher T., Respondent–Appellant.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT. JEFFREY M. HARRINGTON, WEST SENECA, ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT.
JEFFREY M. HARRINGTON, WEST SENECA, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384–b, respondent father appeals from an order denying his motion to vacate a default order that, inter alia, found that he permanently neglected the subject child. We reject the father's contention that Family Court should have granted that motion. "Although default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously in those cases ..., that policy does not relieve the defaulting party of the burden of establishing a reasonable excuse for the default" and a meritorious defense ( Matter of Roshia v. Thiel , 110 A.D.3d 1490, 1491, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013] [internal quotation marks omitted]; see Matter of Cummings v. Rosoff , 101 A.D.3d 713, 714, 955 N.Y.S.2d 193 [2d Dept. 2012] ). Here, even assuming, arguendo, that the father established a reasonable excuse for his failure to appear for the proceeding, we conclude that he failed to establish the requisite meritorious defense (see CPLR 5015[a][1] ; Matter of Shehatou v. Louka , 145 A.D.3d 1533, 1534, 44 N.Y.S.3d 299 [4th Dept. 2016] ; Matter of Strumpf v. Avery , 134 A.D.3d 1465, 1466, 23 N.Y.S.3d 766 [4th Dept. 2015] ).
The father further contends that the court erred in granting his attorney's motion to withdraw as counsel, which the attorney made and the court granted before scheduling the hearing that led to the default order. That contention is not properly before us on this appeal inasmuch as it was not raised in the father's motion to vacate the default order (see Matter of Toyota Motor Credit Corp. v. Impressive Auto Ctr., Inc., 80 A.D.3d 861, 864 n 4, 915 N.Y.S.2d 657 [3d Dept. 2011] ; Zeballos v. Zeballos, 104 A.D.2d 1033, 1034, 481 N.Y.S.2d 11 [2d Dept. 1984], lv dismissed 65 N.Y.2d 602, 690, 491 N.Y.S.2d 1026, 481 N.E.2d 258 [1985], rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055 [1985] ). In any event, the record establishes that the court granted the motion of the father's attorney only after the father received notice of that motion (cf. Matter of La'Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009] ), and after the attorney "demonstrated sufficient cause to be permitted to withdraw" ( Solomon v. Solomon, 172 A.D.2d 1081, 1081, 569 N.Y.S.2d 259 [4th Dept. 1991] ; see generally Matter of Meko M., 272 A.D.2d 953, 954, 708 N.Y.S.2d 787 [4th Dept. 2000] ).