Opinion
2014-07-2
In the Matter of RAPHANELLO J.N.L.L. (Anonymous). Little Flower Children and Family Services of New York, et al., respondents; Rasheem L. (Anonymous), et al., appellants.
Francine Shraga, Brooklyn, N.Y., for appellant Rasheem L. Jill M. Zuccardy, New York, N.Y., for appellant Natalie L.
Francine Shraga, Brooklyn, N.Y., for appellant Rasheem L. Jill M. Zuccardy, New York, N.Y., for appellant Natalie L.
Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent Little Flower Children and Family Services of New York.
Ballon Stoll Bader & Nadler, P.C., New York, N.Y. (Frederic P. Schneider of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In a proceeding pursuant to Social Services Law § 384–b to terminate parental rights pursuant to Family Court Act article 10, the mother and the father separately appeal from an order of the Family Court, Kings County (Mostofsky, J.), dated March 7, 2013, which denied their separate motions to vacate an order of fact-finding and disposition of the same court (Weinstein, J.) dated December 11, 2012, which, upon their failure to appear at a fact-finding and dispositional hearing, found that they had permanently neglected the subject child, terminated their parental rights, and freed the child for adoption.
ORDERED that the order dated March 7, 2013, is affirmed, without costs or disbursements.
The Family Court conducted a fact-finding and dispositional hearing at which a caseworker of the petitioner Little Flower Children and Family Services of New York testified. In an order of fact-finding and disposition, entered upon the parents' failure to appear at the hearing, the court found that the parents had permanently neglected the subject child, terminated their parental rights, and freed the child for adoption. The parents separately filed motions to vacate the order of fact-finding and disposition, and the court denied the motions.
The determination whether to relieve a party of a default is a matter left to the sound discretion of the Family Court ( see Matter of Viergela A., 40 A.D.3d 630, 631, 835 N.Y.S.2d 373;Matter of Samantha P., 297 A.D.2d 348, 746 N.Y.S.2d 844;Matter of Samaria Ann B., 293 A.D.2d 532, 739 N.Y.S.2d 831). In seeking to vacate their default, the parents were required to show that there was a reasonable excuse for their default and that they had a potentially meritorious defense ( seeCPLR 5015[a][1]; Matter of Iris R., 295 A.D.2d 521, 744 N.Y.S.2d 685;Matter of Angel Joseph S., 282 A.D.2d 752, 724 N.Y.S.2d 336).
The Family Court providently exercised its discretion in denying the parents' separate motions, as the parents failed to establish a reasonable excuse for their failure to appear. Although they claimed that the father was in the hospital, none of the documents that they submitted supported the assertion that the father was hospitalized on the date of the hearing ( see Matter of Viergela A., 40 A.D.3d at 631, 835 N.Y.S.2d 373;Matter of Joei R., 302 A.D.2d 334, 334, 756 N.Y.S.2d 516). In any event, the parents failed to set forth a potentially meritorious defense. The conclusory assertions in their affidavits, without more, were insufficient to establish the existence of a potentially meritorious defense ( see Matter of Jenna C. [Omisa C.], 81 A.D.3d 941, 917 N.Y.S.2d 650;Matter of Devon Defonte B.-S. [Christine B.], 73 A.D.3d 1037, 900 N.Y.S.2d 660;Matter of Samantha B. [Arthur Eugene S.], 72 A.D.3d 682, 683, 897 N.Y.S.2d 915;Matter of Christian T., 12 A.D.3d 613, 785 N.Y.S.2d 93;Matter of Irvin R., 257 A.D.2d 624, 684 N.Y.S.2d 255).
The parties' remaining contentions are without merit.