Opinion
7226 7226A
10-04-2018
In re TYRONE F., Petitioner–Respondent, v. MARIAH O., Respondent–Appellant. In re Sayoni S.S.F., A Child Under Eighteen Years of Age, etc., Mariah O., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent, Tyrone F., Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. Thomas R. Villecco, Jericho, for Tyrone F., respondent. Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for Administration for Children's Services, respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Leslie S. Lowenstein, Woodmere, for appellant.
Thomas R. Villecco, Jericho, for Tyrone F., respondent.
Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for Administration for Children's Services, respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Friedman, J.P., Sweeny, Kapnick, Gesmer, Singh, JJ.
Orders, Family Court, Bronx County (David J. Kaplan, J.), entered on or about July 12, 2017, which denied respondent-appellant mother's motion to vacate orders of the same court and Judge, entered on or about January 30, 2017, granting the order to show cause of petitioner Administration for Children's Services finding that appellant violated the terms of a suspended judgment and ending supervision of the Article 10 petition filed against her; and granting respondent father's petition for custody of the child and dismissing appellant's custody petition, unanimously affirmed, without costs.
The Family Court providently exercised its discretion in denying the motion to vacate the mother's default because the moving papers failed to demonstrate both a reasonable excuse and a meritorious defense (see Matter of Tyieyanna L. [Twanya McK.], 94 A.D.3d 494, 941 N.Y.S.2d 498 [1st Dept. 2012] ). The mother's claim that she missed the January 30, 2017 hearing because she lacked the funds for travel from Georgia to the Bronx was unsubstantiated and therefore insufficient as a reasonable excuse for vacating her default (see Matter of Gloria Marie S., 55 A.D.3d 320, 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] ). Even if the mother's lack of funds were the true reason for her failure to appear at the hearing, she provided no explanation as to why she did not notify her counsel, the court or the agency of her inability to attend (see Matter of Evan Matthew A. [Jocelyn Yvette A.], 91 A.D.3d 538, 539, 938 N.Y.S.2d 6 [1st Dept. 2012] ; Matter of Isaac Howard M. [Fatima M.], 90 A.D.3d 559, 560, 936 N.Y.S.2d 11 [1st Dept. 2011], lv dismissed, denied 18 N.Y.3d 975, 944 N.Y.S.2d 476, 967 N.E.2d 701 [2012] ).
Given the mother's failure to establish a reasonable excuse for her default, this Court need not determine whether she established a meritorious defense to the allegation that she violated the suspended judgment (see Matter of Ne Veah M. [Michael M.], 146 A.D.3d 673, 674, 45 N.Y.S.3d 455 [1st Dept. 2017] ). In any event, her conclusory denial of violating the order of protection issued against her failed to establish a meritorious defense (see Matter of Shavenon N. [Miledy L.N.], 71 A.D.3d 401, 895 N.Y.S.2d 409 [1st Dept. 2010] ).