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Bongiorno v. Samuel

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Oct 23, 2019
176 A.D.3d 1054 (N.Y. App. Div. 2019)

Opinion

2018–13213 Docket No. O–07091–18

10-23-2019

In the Matter of Bozena M. BONGIORNO, Respondent, v. Steve T. SAMUEL, Appellant.

Philip A. Greenberg, P.C., New York, NY, for appellant.


Philip A. Greenberg, P.C., New York, NY, for appellant.

CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY LINDA CHRISTOPHER, JJ.

DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, Steve T. Samuel appeals from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated October 18, 2018. The order denied Steve T. Samuel's motion pursuant to CPLR 5015(a)(1) to vacate an order of protection that was entered against him, after an inquest, upon his default in appearing for a scheduled court date. ORDERED that the order is affirmed, without costs or disbursements.

In this family offense proceeding, the Family Court issued an order of protection against the appellant and in favor of the petitioner, after an inquest, upon the appellant's failure to appear for a scheduled court date. The appellant subsequently moved pursuant to CPLR 5015(a)(1) to vacate the order of protection, and the court denied the motion.

"A respondent seeking to vacate an order of protection entered upon his or her failure to appear on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition" (Matter of McKinney v. Jones, 151 A.D.3d 973, 973, 54 N.Y.S.3d 304 ; see CPLR 5015[a][1] ; Matter of Ignatieva v. Sullivan, 169 A.D.3d 680, 91 N.Y.S.3d 724 ). We agree with the Family Court's determination denying the appellant's motion to vacate the order of protection entered upon his default. As noted by the court, the appellant was advised of the scheduled court date when he was present in court during a prior appearance, and he did not demonstrate a reasonable excuse for his failure to appear on the scheduled court date (see Matter of McKinney v. Jones, 151 A.D.3d at 974, 54 N.Y.S.3d 304 ; Matter of Idieru v. Jeanpierre, 122 A.D.3d 852, 853, 996 N.Y.S.2d 700 ). Since the appellant failed to proffer a reasonable excuse for his default, we need not reach the issue of whether he demonstrated a potentially meritorious defense (see Zovko v. Quittner Realty, LLC, 162 A.D.3d 1102, 1104, 80 N.Y.S.3d 112 ; Bernstein v. Geiss, 111 A.D.3d 774, 775, 975 N.Y.S.2d 168 ).

CHAMBERS, J.P., AUSTIN, DUFFY and CHRISTOPHER, JJ., concur.


Summaries of

Bongiorno v. Samuel

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Oct 23, 2019
176 A.D.3d 1054 (N.Y. App. Div. 2019)
Case details for

Bongiorno v. Samuel

Case Details

Full title:In the Matter of Bozena M. Bongiorno, respondent, v. Steve T. Samuel…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Oct 23, 2019

Citations

176 A.D.3d 1054 (N.Y. App. Div. 2019)
108 N.Y.S.3d 867
2019 N.Y. Slip Op. 7577