Aponte v. Jagnarain
| Decision Date | 11 May 2022 |
| Docket Number | V-4433-16/20C,2021-02472,O-1112-20/20A/20B |
| Parties | In the Matter of Paul Brian Aponte, respondent, v. Alicia Jagnarain, appellant. |
| Court | New York Supreme Court — Appellate Division |
Rhonda R. Weir, Brooklyn, NY, for appellant.
Barry J. Fisher, Garden City, NY, for respondent.
Kenneth M. Tuccillo, Hastings-on-Hudson, NY, attorney for the child.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, JOSEPH A ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In three related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals from three orders (one in each proceeding) of the Family Court, Nassau County (Ellen R. Greenberg, J.), all dated February 17, 2021. The orders denied the mother's motion to vacate an order of protection of the same court dated November 18, 2020, entered upon her failure to appear at a hearing, and to change venue from Nassau County to New York County, and granted the father's cross motion for an award of attorneys' fees to the extent of awarding him attorneys' fees in the sum of $2, 200.
ORDERED that the orders dated February 17, 2021, are affirmed without costs or disbursements.
The parties, who were never married, have one child in common, born in 2015. In 2017, the father was awarded sole legal and residential custody of the child, and the mother was awarded unsupervised parental access. In February 2020, the Family Court granted a temporary order of protection in favor of the father against the mother, based on the father's allegations that the mother had committed the family offense of harassment in that she repeatedly had falsely accused him of sexually abusing the child. Thereafter, in the family offense proceeding, the father filed a petition alleging that the mother had violated the temporary order of protection, as well as a petition to modify the temporary order of protection by adding the child thereto. The father subsequently filed a petition to modify the prior orders of custody and parental access by limiting the mother's parental access with the child to supervised parental access. On November 18, 2020, after a fact-finding hearing in the family offense proceeding, and upon the mother's failure to appear on the date the hearing was scheduled to continue, the court issued a final order of protection directing the mother to stay away from the father and to stay away from the child except for supervised parental access.
Thereafter, the mother moved, inter alia, to vacate the final order of protection, entered upon her default, and to change venue from Nassau County to New York County, where the child resided. After that motion was denied, the mother made a successive motion for the same relief, and the father cross-moved for an award of attorneys' fees. In three orders, all dated February 17, 2021 (one in each proceeding), the Family Court denied the mother's motion to vacate the final order of protection and to change venue, and granted the father's cross motion to the extent of awarding him attorneys' fees in the sum of $2, 200. The mother appeals from the orders dated February 17, 2021.
"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" (Matter of Abella v Szileszky, 177 A.D.3d 729, 729-730; see CPLR 5015[a][1]; Matter of Moreno v Ramos, 174 A.D.3d 716, 716-717). "The determination of whether to relieve a party of a default is within the sound discretion of the Family Court" (Matter of Goldstein v Goldstein, 190 A.D.3d 971, 972 [internal quotation marks omitted]; see Matter of Abella v Szileszky, 177 A.D.3d at 729; Matter of Brandon G. [Tiynia M.], 155 A.D.3d 626).
Here the Family Court providently exercised its discretion in denying the mother's request to vacate her default in appearing at the continued fact-finding hearing in the family offense proceeding. The mother failed to provide a reasonable excuse for her failure to appear on the day the hearing was scheduled to resume (see Matter of Goldstein v Goldstein, 190 A.D.3d at 972-973; Matter of Hines v Baptiste, 178 A.D.3d 825, 826; Matter of Abella v Szileszky, 177 A.D.3d at 730). The mother had discharged her attorney on the eve of the continued hearing, and the court had denied her request for an adjournment, which was a provident exercise of discretion, particularly since the mother had previously discharged counsel under similar circumstances (see Greenberg v Greenberg, 144 A.D.3d 625, 630-631; Matter of Wiley v...
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