Opinion
01-26-2017
In re NE VEAH M., A Child Under Eighteen Years of Age, etc., Michael M., Respondent–Appellant, Administration for Children Services, Petitioner–Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Marianne Allegro of counsel), attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marianne Allegro of counsel), attorney for the child.
ACOSTA, J.P., MAZZARELLI, FEINMAN, WEBBER, JJ.
Order of disposition, Family Court, Bronx County (Linda B. Tally, J.), entered on or about August 13, 2015, to the extent it brings up for review a fact-finding order of the same court and Judge, entered on or about June 15, 2015, which denied respondent's motion to vacate his default and re-open the fact-finding hearing, which, after an inquest, determined that he sexually abused the subject child, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The Family Court properly exercised its discretion in denying respondent's motion to vacate his default because his moving papers failed to demonstrate a reasonable excuse for his absence (see Matter of Isaiha M. [Atavia M.], 115 A.D.3d 575, 982 N.Y.S.2d 462 [1st Dept.2014] ). Although respondent's counsel appeared at the fact-finding hearing, he notified the court that he would not be participating and presented no explanation as to why respondent was not there (see Matter of Jaquan Tieran B. [Latoya B.], 105 A.D.3d 498, 499, 963 N.Y.S.2d 190 [1st Dept.2013] ). Respondent's claim that he was prevented from appearing at the hearing by unforeseen circumstances beyond his control after he lost his wallet and attorney's contact information seven days earlier fails, because there was no explanation as to how that caused him to default or why he did not contact his attorney's office, the Bronx Defenders, and ask to speak with his attorney, and provided nothing to corroborate his claims (see Matter of Gloria
Marie S., 55 A.D.3d 320, 865 N.Y.S.2d 68 [1st Dept. 2008], lv. dismissed 11 N.Y.3d 909, 873 N.Y.S.2d 523, 901 N.E.2d 1275 [2009] ). Given respondent's failure to establish a reasonable excuse for his default, this Court need not determine whether he demonstrated a meritorious defense to the petition's allegations (see Matter of Raymond C.M. [Marilyn M.], 132 A.D.3d 512, 19 N.Y.S.3d 24 [1st Dept.2015] ; Washington v. Janati, 118 A.D.3d 603, 987 N.Y.S.2d 842 [1st Dept.2014] ).
Even if this Court were to determine that respondent established a reasonable excuse for his default in appearance, his assertion that he will present evidence including expert testimony countering the allegations that he allowed or committed a sex offense against the child is insufficient to establish a meritorious defense (see Matter of Giovanni Maurice D. [Wilner B.], 99 A.D.3d 631, 953 N.Y.S.2d 565 [1st Dept.2012] ; Matter of Cain Keel L. [Derzerina L.], 78 A.D.3d 541, 911 N.Y.S.2d 335 [1st Dept.2010], lv. dismissed 16 N.Y.3d 818, 920 N.Y.S.2d 777, 945 N.E.2d 1029 [2011] ).