Ignatieva v. Sullivan, 2018–02817

• Decision Date: 06 February 2019
• Docket Number: 2018–02817,Docket No. O–21114–16
• Citation: 91 N.Y.S.3d 724 (Mem),169 A.D.3d 680
• Parties: In the Matter of Alesya Mikhailovna IGNATIEVA, Respondent, v. Corey J. SULLIVAN, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 680

91 N.Y.S.3d 724 (Mem)

In the Matter of Alesya Mikhailovna IGNATIEVA, Respondent,

v.Corey J. SULLIVAN, Appellant.

2018–02817

Docket No. O–21114–16

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

Argued - October 29, 2018

February 6, 2019

Christine Theodore, Brooklyn, NY, for appellant.

Steven P. Forbes, Jamaica, NY, for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the father appeals from an order of the Family Court, Kings County (Denise M. Valme–Lundy, Ct. Atty. Ref.), dated February 7, 2018. The order denied the father's motion pursuant to CPLR 5015(a)(1) to vacate a final order of protection that was entered against him after an inquest upon his default in appearing for a scheduled court date.

ORDERED that the order dated February 7, 2018, is affirmed, without costs or disbursements.

The parties have one child in common, and the mother has two other children. In August 2016, the mother commenced this family offense proceeding against the father. On September 8, 2017, the Family Court issued a final order of protection against the father and in favor of the mother and the three children upon the father's failure to appear for a scheduled court date. The father moved to vacate the final order of protection, and the court denied his motion.

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 McKinney v. Jones, 151 A.D.3d 973, 973, 54 N.Y.S.3d 304 ; see CPLR 5015[a][1] ). Here, the father failed to demonstrate a reasonable excuse for his failure to appear on the scheduled court date (see Matter of Qwin L.X.P. [Leonard P.], 158 A.D.3d 698, 699, 68 N.Y.S.3d 741 ; Matter of Tamel D. [Curtiz J.—Tanisha R.B.], 156 A.D.3d 695, 696, 66 N.Y.S.3d 43 ; Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 993 N.Y.S.2d 698 ; Matter of Mariah A. [Hugo A.], 109 A.D.3d 751, 973 N.Y.S.2d 15 ; Matter of Dominique Beyonce R. [Maria Isabel R.], 82 A.D.3d 984, 985, 918 N.Y.S.2d 577 ; see also Matter of McKinney v. Jones, 151 A.D.3d 973, 973–974, 54 N.Y.S.3d 304 ; Matter of Jurow v. Cahill, 56 A.D.3d 559, 559–560, 866 N.Y.S.2d 874 ). Further, his conclusory assertions were insufficient to constitute a potentially meritorious defense (see Matter of Lando v. Lando, 160 A.D.3d 859, 860, 74 N.Y.S.3d 362 ; Matter of Mongitore v. Linz, 95 A.D.3d 1130, 1131, 943 N.Y.S.2d 899 ).

Accordingly, we agree with the Family Court's denial of the father's motion. Any...