Opinion
2014-11-19
In the Matter of Julie IDIERU, respondent, v. Albertold JEANPIERRE, appellant.
Heath J. Goldstein, Jamaica, N.Y., for appellant. Maricel Gonzalez, Jamaica, N.Y., for respondent.
Heath J. Goldstein, Jamaica, N.Y., for appellant. Maricel Gonzalez, Jamaica, N.Y., for respondent.
John J. Marotta, Douglaston, N.Y., attorney for the children.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated April 11, 2014. The order denied the father's motion to vacate an order of protection which was entered upon his failure to appear at a hearing.
ORDERED that the order is affirmed, without costs or disbursements.
“A party seeking to vacate an order of protection entered upon his or her default in appearing for a hearing on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition” ( Matter of Nunez v. Lopez, 103 A.D.3d 803, 804, 959 N.Y.S.2d 454; seeCPLR 5015[a][1]; Matter of Mongitore v. Linz, 95 A.D.3d 1130, 943 N.Y.S.2d 899). “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” ( Matter of Nunez v. Lopez, 103 A.D.3d at 804, 959 N.Y.S.2d 454; see Matter of Lee v. Morgan, 67 A.D.3d 681, 682, 889 N.Y.S.2d 205).
Here, the father failed to demonstrate a reasonable excuse for his failure to appear on the scheduled hearing date ( see Matter of Gloria Marie S., 55 A.D.3d 320, 865 N.Y.S.2d 68; cf. Matter of Kindra B., 296 A.D.2d 456, 745 N.Y.S.2d 74), and his conclusory assertions were insufficient to constitute a potentially meritorious defense ( see Matter of Mongitore v. Linz, 95 A.D.3d 1130, 943 N.Y.S.2d 899; Matter of Atkin v. Atkin, 55 A.D.3d 905, 865 N.Y.S.2d 577). Accordingly, the Family Court did not improvidently exercise its discretion by denying the father's motion to vacate the order of protection entered upon his default.