Opinion
2012-06-8
In the Matter of ANASTASHIA S. Chautauqua County Department of Social Services, Petitioner–Respondent; Tonya R., Respondent–Appellant.
Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered May 10, 2011 in a proceeding pursuant to Social Services Law § 384–b. The order denied the motion of respondent to vacate a default judgment. Erickson Webb Scolton & Hajdu, Lakewood (Paul V. Webb, III, of Counsel), for respondent-appellant. Jane E. Love, Mayville, for petitioner-respondent.
Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered May 10, 2011 in a proceeding pursuant to Social Services Law § 384–b. The order denied the motion of respondent to vacate a default judgment.
Erickson Webb Scolton & Hajdu, Lakewood (Paul V. Webb, III, of Counsel), for respondent-appellant. Jane E. Love, Mayville, for petitioner-respondent.
Michael J. Sullivan, Attorney for the Child, Fredonia, for Anastashia S.
MEMORANDUM:
Contrary to the contention of respondent mother, Family Court did not abuse its discretion in denying her motion to vacate a judgment entered upon her default in this permanent neglect proceeding. The mother's contention that she had a reasonable excuse for her failure to appear based upon her lack of knowledge of the fact-finding hearing and upon her incarceration at the time of that hearing is not preserved for our review, inasmuch as she did not seek vacatur on those grounds ( see Matter of Derrick T., 261 A.D.2d 108, 109, 687 N.Y.S.2d 260). In any event, we conclude that the mother failed to establish a reasonable excuse for her failure to appear ( see Matter of Raymond Anthony A., 192 A.D.2d 529, 596 N.Y.S.2d 723,lv. dismissed82 N.Y.2d 706, 601 N.Y.S.2d 585, 619 N.E.2d 663;cf. Matter of Danner–Nepage v. Nepage, 60 A.D.3d 1495, 1495–1496, 875 N.Y.S.2d 853). In addition, the mother's unsubstantiated and conclusory assertion of partial compliance with the prior dispositional order is insufficient to establish a meritorious defense to the petition ( see Matter of Gloria Marie S., 55 A.D.3d 320, 321, 865 N.Y.S.2d 68,lv. dismissed11 N.Y.3d 909, 873 N.Y.S.2d 523, 901 N.E.2d 1275;see also Matter of Kenneth L., 92 A.D.3d 1245, 1247, 938 N.Y.S.2d 713;Matter of Alexis C.R., 71 A.D.3d 1511, 895 N.Y.S.2d 912,lv. dismissed 14 N.Y.3d 922, 905 N.Y.S.2d 125, 931 N.E.2d 94).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.