Opinion
354 Dkt. No. O-4535/21 Case No. 2022–02448
06-01-2023
In the Matter of SHARON M., Petitioner–Respondent, v. ELMER GABRIEL M., Respondent–Appellant.
Maldonado & Cruz, PLLC, Bronx (Angel Cruz of counsel), for appellant.
Maldonado & Cruz, PLLC, Bronx (Angel Cruz of counsel), for appellant.
Kapnick, J.P., Oing, Gesmer, Singh, Shulman, JJ.
Order, Family Court, Bronx County (Liberty Aldrich, J.), entered on or about May 20, 2022, which denied respondent's motion to vacate a two-year order of protection entered after an inquest conducted upon his default, unanimously affirmed, without costs.
Family Court providently exercised its discretion in denying respondent's motion to vacate the order of protection entered upon his default, as he failed to establish a reasonable excuse for his failure to appear for the January 12, 2022 fact-finding hearing that resulted in the order ( CPLR 5015[a][1] ; see Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 413, 993 N.Y.S.2d 698 [1st Dept. 2014] ; Matter of Joei R., 302 A.D.2d 334, 335, 756 N.Y.S.2d 516 [1st Dept. 2003], lv dismissed in part, denied in part 100 N.Y.2d 575, 764 N.Y.S.2d 383, 796 N.E.2d 474 [2003] ). Although respondent's former counsel may have miscalendared the hearing date by writing down February 12, 2022 instead of January 12, 2022, that mistake does not constitute a reasonable excuse under the circumstances. Respondent was present when Family Court scheduled the hearing date. In addition, respondent did not deny receiving a notice to appear, which was sent to him by both regular mail and email, and informed him of the hearing date and how to appear virtually (see Matter of Natalia M. v. Odane S., 172 A.D.3d 597, 597, 98 N.Y.S.3d 836 [1st Dept. 2019] ).
Since respondent's proffered excuse was not reasonable, we need not determine whether he showed a potentially meritorious defense (see Matter of Darryl H.W. [Angelina P.], 194 A.D.3d 439, 440, 143 N.Y.S.3d 208 [1st Dept. 2021] ).