Abella v. Szileszky

• Decision Date: 13 November 2019
• Docket Number: 2019–01216,Docket No. O–00567–15
• Citation: 177 A.D.3d 729,114 N.Y.S.3d 372
• Parties: In the Matter of Veronika ABELLA, Respondent, v. Levente SZILESZKY, Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 729

114 N.Y.S.3d 372

In the Matter of Veronika ABELLA, Respondent,

v.Levente SZILESZKY, Appellant.

2019–01216

Docket No. O–00567–15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 3, 2019

November 13, 2019

Levente Szileszky, Brooklyn, NY, appellant pro se.

Simpson Thacher & Bartlett LLP, New York, N.Y. (Bryce L. Friedman, Joshua C. Polster, and Shanice D. Hinckson of counsel), for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki of counsel), attorney for the children.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SHERI S. ROMAN, BETSY BARROS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Levente Szileszky appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated December 4, 2018. The order denied that branch of the motion of Levente Szileszky which was to vacate an order of protection entered against him, after an inquest, upon his default in appearing for a scheduled court date.

ORDERED that the order is affirmed, without costs or disbursements.

In June 2015, the petitioner filed a family offense petition alleging that her husband, Levente Szileszky, had menaced, harassed, and assaulted her. Although Szileszky was present in court on December 13, 2017, when the fact-finding hearing was adjourned to February 6, 2018, and although the Supreme Court repeated the adjourned date four times, Szileszky failed to appear on the adjourned date. Szileszky was found to be in default, and the court conducted a fact-finding inquest. The court entered a full stay-away order of protection, upon default, in favor of the petitioner and the parties' children, and against Szileszky. Upon a finding of aggravating circumstances, the court ordered that the order of protection was to remain in effect for five years. Thereafter, Szileszky moved, inter alia, to vacate the order of protection entered upon his default. In the order appealed from, the court denied that branch of Szileszky's motion.

The determination of whether to relieve a party of a default is within the sound discretion of the motion court (see Matter of Anita J.U. [Jennifer A.], 162 A.D.3d 780, 781, 79 N.Y.S.3d 84 ; Matter of Brandon G. [Tiynia M.], 155 A.D.3d 626, 63 N.Y.S.3d 484 ). A party seeking to vacate an order of protection entered upon his or her failure to appear on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition (see CPLR 5015[a][1] ; Matter of Moreno v. Ramos, 174 A.D.3d 716, 716–717, 102 N.Y.S.3d 442 ).

Here, contrary to Szileszky's contention, he failed to provide a reasonable excuse for his default. Szileszky was present in court when the hearing was...