Castellotti v. Castellotti

• Decision Date: 17 October 2018
• Docket Number: Docket No. O–342–16,2017–11862
• Citation: 86 N.Y.S.3d 120,165 A.D.3d 926
• Parties: In the Matter of Lisa CASTELLOTTI, respondent, v. Peter CASTELLOTTI, appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 926

86 N.Y.S.3d 120

In the Matter of Lisa CASTELLOTTI, respondent,

v.Peter CASTELLOTTI, appellant.

2017–11862

Docket No. O–342–16

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

Argued—September 13, 2018

October 17, 2018

J. Kaplan & Associates, PLLC, New York, N.Y. (Jeffrey A. Kaplan and Joseph D. DePalma of counsel), for appellant.

Reed Smith, LLP, New York, N.Y. (Steven Cooper of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Peter Castellotti appeals from an order of the Family Court, Richmond County (Alexandra Byun, Ct. Atty. Ref.), dated October 3, 2017. The order, insofar as appealed from, after a hearing, denied his motion pursuant to CPLR 5015(a)(1) to vacate a final order of protection of the same court dated June 7, 2017, entered upon his default in appearing for a hearing.

ORDERED that the order dated October 3, 2017, is affirmed insofar as appealed from, with costs.

The parties, who are siblings, were scheduled to appear in the Family Court at 11:30 a.m. on June 7, 2017, for a continued hearing in connection with a family offense petition that the petitioner had filed against the appellant. The matter was called at approximately 11:36 a.m., and again at approximately 12:17 p.m., but the appellant and his counsel failed to appear. The court proceeded to inquest and entered a final order of protection upon the appellant's default. Subsequently, the appellant moved to vacate his default, asserting, inter alia, that his default was due to his confusion as to the start time of the hearing and that he would have appeared at 11:30 a.m. had he known that the hearing was scheduled to start at that time. The appellant's counsel submitted an affirmation in support of the motion, wherein he asserted that, due to law office failure, he inadvertently provided his client with a 2:30 p.m. start time. The court denied the appellant's motion, finding that he failed to demonstrate a reasonable excuse for his default.

"A party seeking to vacate an order of protection entered upon his or her default in appearing for a hearing on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition" ( Matter of Nunez v. Lopez, 103 A.D.3d 803, 804, 959 N.Y.S.2d 454 ; see CPLR 5015[a][1] ). "The determination of whether to relieve a party of an order entered upon his or her default is within the sound discretion of the Family Court" ( Matter of Nunez v. Lopez, 103 A.D.3d at 804, 959 N.Y.S.2d 454 ). A court has the discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation, although mere neglect is not a reasonable excuse (see Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Onewest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ; Servilus v. Walcott, 148 A.D.3d 743, 744, 48 N.Y.S.3d 494 ).

Here, the Family Court providently exercised its discretion in determining that the appellant failed to present a reasonable excuse for his default. Confusion or mistake as to a court date does not constitute a reasonable excuse where, as here, the...