Opinion
5487
01-18-2018
In re MARIE S. C., Petitioner–Respondent, v. Jamal BENJAMIN B., Respondent–Appellant.
Bruce A. Young, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Bruce A. Young, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Acosta, P.J., Sweeny, Gische, Andrias, Gesmer, JJ.
Order, Family Court, New York County (Carol Goldstein, J.), entered on or about September 23, 2016, which, to the extent appealed from, denied respondent father's objections to the Support Magistrate's denial of the father's motion to vacate a support order that was entered upon his default in 2008, unanimously affirmed, without costs.
The Family Court providently exercised its discretion in denying the father's motion to vacate his default, as the motion was untimely ( CPLR 5015[a][1] ; Matter of Commissioner of Social Servs. of the City of N.Y. v. Juan H.M., 128 A.D.3d 501, 9 N.Y.S.3d 246 [1st Dept. 2015] ). The father brought his motion more than six years after it had been entered against him, despite his actual knowledge that the order was outstanding. The clerk's mailing of the order to the father's address as stated on the record constituted sufficient notice to render the father's motion untimely ( 128 A.D.3d at 501, 9 N.Y.S.3d 246 ).
Even if the father's motion to vacate the default order were timely, the father's motion still fails on the merits, as he failed to provide a reasonable excuse for his default and a meritorious defense (see Matter of Rickelme Alfredo B. [Ricardo Alfred B.], 132 A.D.3d 490, 490, 19 N.Y.S.3d 20 [1st Dept. 2015] ).