Opinion
10895 Dkt. B-2376/17
01-28-2020
IN RE MALACHI O. B., A Child Under Eighteen Years of Age, etc., Keneta K. B., Respondent–Appellant, v. The Children's Aid Society, Petitioner-Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. Rosin Steinhagen Mendel PLLC, New York (Marion C. Perry of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.
Rosin Steinhagen Mendel PLLC, New York (Marion C. Perry of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Friedman, J.P., Webber, Kern, Gonza´lez, JJ.
Purported appeal from a decision, Family Court, New York County (Emily M. Olshansky, J.), entered on or about December 19, 2018, which denied respondent mother's motion to vacate her default, deemed a premature notice of appeal (see CPLR 5520[c] ; Matter of Jeremiah D. [Deon D.] , 155 A.D.3d 414, 62 N.Y.S.3d 799 [1st Dept. 2017] ) from the order, same court and Judge, entered on or about January 10, 2019, and, so considered, said order, unanimously affirmed, without costs.
The court properly denied the mother's motion to vacate her default. The mother's assertion that she missed the fact-finding and dispositional hearings because she did not know when the fact-finding hearing was scheduled to commence was not a reasonable excuse for her failure to appear. There is no dispute that she and her counsel were present when the date for the hearing was selected (see Matter of Roberto O. [Lakeysha H.] , 166 A.D.3d 435, 435–436, 88 N.Y.S.3d 157 [1st Dept. 2018] ; CPLR 5015[a][1] ). Although the mother averred in her affidavit that at some point in mid-September 2018, a caseworker told her that the hearing would begin in November 2018, she does not explain why she did not ascertain or confirm the hearing date by contacting her counsel, the agency or the court (see Matter of Yadori Marie F. [Osvaldo F.] , 111 A.D.3d 418, 419, 974 N.Y.S.2d 71 [1st Dept. 2013] ).
In light of the mother's failure to establish a reasonable excuse for her nonappearance for the November 8, 2018 hearing, this Court need not determine whether she established a meritorious defense to the permanent neglect petition (see Matter of Michael P. , 165 A.D.3d 497, 498, 85 N.Y.S.3d 439 [1st Dept. 2018], lv denied 32 N.Y.3d 1135, 92 N.Y.S.3d 173, 116 N.E.3d 657 [2019] ). In any event, the record establishes that she did not set forth a meritorious defense.