Opinion
12-02-2015
In the Matter of Marie CRAI, respondent, v. Robert CRAI, appellant.
Robert S. Lewis, P.C., Nyack, N.Y., for appellant.
Robert S. Lewis, P.C., Nyack, N.Y., for appellant.
Opinion
Appeal from an order of the Family Court, Westchester County (Michelle I. Schauer, J.), dated December 24, 2014. The order denied the father's objections to an order of that court (Rosa Cabanillas–Thompson, S.M.) dated September 19, 2014, which denied his motion pursuant to CPLR 5015(a) to vacate an order of that court (Rosa Cabanillas–Thompson, S.M.) dated September 10, 2014, which, upon his failure to appear at a hearing, granted the mother's petition for an upward modification of his child support obligation.
ORDERED that the order dated December 24, 2014, is affirmed, without costs or disbursements.
A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1]; Matter of Hurston v. Southlea, 91 A.D.3d 952, 937 N.Y.S.2d 607; Matter of Morales v. Marma, 88 A.D.3d 722, 930 N.Y.S.2d 629; Matter of Petulla v. Petulla, 85 A.D.3d 925, 925 N.Y.S.2d 338). The determination of whether to relieve a party of an order entered upon his or her default is within the sound discretion of the Family Court (see Matter of Hurston v. Southlea, 91 A.D.3d 952, 937 N.Y.S.2d 607; Matter of Cassidy Sue R., 58 A.D.3d 744, 870 N.Y.S.2d 799; Matter of Francisco R., 19 A.D.3d 502, 796 N.Y.S.2d 247). Here, the father's proffered excuse for failing to appear at a scheduled hearing on the mother's petition for an upward modification of his child support obligation was that he had “an anxiety condition” which made him “unable to fully concentrate at times,” and “could cause intermittent confusion.” This excuse is both too general and too equivocal to explain why he failed to appear at the hearing, of which he admits he was provided notice (see Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 993 N.Y.S.2d 698; Matter of Mariah A. [Hugo A.], 109 A.D.3d 751, 973 N.Y.S.2d 15; Matter of Jaynices D. [Yesenia Del V.], 67 A.D.3d 518, 889 N.Y.S.2d 144; Matter of Gloria Marie S., 55 A.D.3d 320, 865 N.Y.S.2d 68). Since the father failed to demonstrate a reasonable excuse for the default, we need not consider whether he offered a potentially meritorious defense to the mother's petition (see Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 993 N.Y.S.2d 698; Matter of Yadori Marie F. [Osvaldo F.], 111 A.D.3d 418, 974 N.Y.S.2d 71; Deutsche Bank Natl. Trust Co. v. Conway, 99 A.D.3d 755, 951 N.Y.S.2d 892; Fremont Inv. & Loan v. Bertram, 90 A.D.3d 988, 934 N.Y.S.2d 822). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order denying his motion to vacate his default.
DILLON, J.P., HALL, COHEN and BARROS, JJ., concur.