Opinion
645 CAF 19-00060
10-02-2020
In the MATTER OF MARIANYS I. Erie County Department of Social Services, Petitioner-Respondent; v. Gabrielle I., Respondent-Appellant. (Appeal No. 1.)
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Social Services Law § 384-b, Family Court entered default orders terminating respondent mother's parental rights with respect to each of the subject children on the ground of abandonment after the mother failed to answer the abandonment petitions and failed to appear in court on the return date. The mother thereafter moved to vacate the default orders, contending, inter alia, that she was never served with the petitions. The court denied the motions in two separate orders, and we now affirm.
"Pursuant to CPLR 5015 (a) (1), a court may vacate a judgment or order entered upon default if it determines that there is a reasonable excuse for the default and a meritorious defense" ( Matter of Shehatou v. Louka , 145 A.D.3d 1533, 1534, 44 N.Y.S.3d 299 [4th Dept. 2016] [internal quotation marks omitted] ). To establish a meritorious defense, the moving party is required "to set forth sufficient facts [or legal arguments] to demonstrate, on a prima facie basis, that a defense existed" ( Matter of Strumpf v. Avery , 134 A.D.3d 1465, 1466, 23 N.Y.S.3d 766 [4th Dept. 2015] [internal quotation marks omitted] ). "[B]are assertion[s] ... [of] a meritorious defense without stating the facts or legal arguments to establish that defense [are] insufficient" ( id. ).
Here, even assuming, arguendo, that the mother established a reasonable excuse for her default, we conclude that she failed to demonstrate a meritorious defense to the abandonment petitions, which alleged that she had no meaningful contact with the subject children during the six-month period immediately preceding the filing of the petitions (see Social Services Law § 384-b [4] [b] ). In the affidavit submitted by the mother in support of her motions, she did not dispute that she failed to visit or contact the children during the relevant time period. We therefore conclude that the court did not abuse its discretion in denying the motions (see Matter of Mikia H. [Monique K.] , 78 A.D.3d 1575, 1576, 911 N.Y.S.2d 554 [4th Dept. 2010], lv denied in part and dismissed in part 16 N.Y.3d 760, 919 N.Y.S.2d 111, 944 N.E.2d 648 [2011] ).