Kenneth S. v. Bethzaida P.

• Decision Date: 08 May 2012
• Citation: 2012 N.Y. Slip Op. 03651,943 N.Y.S.2d 762,95 A.D.3d 1022
• Parties: In the Matter of KENNETH S. (Anonymous), petitioner-respondent, v. BETHZAIDA P. (Anonymous), appellant,Commissioner of Administration for Children's Services, respondent-respondent; et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03651

943 N.Y.S.2d 762

95 A.D.3d 1022

In the Matter of KENNETH S. (Anonymous), petitioner-respondent,

v.BETHZAIDA P. (Anonymous), appellant,Commissioner of Administration for Children's Services, respondent-respondent; et al., respondents.

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

May 8, 2012.

Rayaaz N. Khan, Jamaica, N.Y., for appellant.

Frank M. Galchus, Bayside, N.Y., for petitioner-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Julie Steiner of counsel), for respondent-respondent.Steven P. Forbes, Jamaica, N.Y., attorney for the child Justin P.Marc E. Strauss, Jamaica, N.Y., attorney for the child Cheyanne P.

In guardianship proceedings pursuant to Family Court Act article 6, the mother appeals from so much of an order of the Family Court, Queens County (Anixiadis, Ct. Atty. Ref.), dated March 18, 2011, as denied her motion to vacate an order of the same court dated October 15, 2010, appointing the petitioner permanent guardian of the subject children upon the mother's default in appearing at a continued permanency hearing.

ORDERED that the order dated March 18, 2011, is affirmed insofar as appealed from, without costs or disbursements.

The determination whether to relieve a party of a default is a matter which is left to the sound discretion of the Family Court ( see Matter of Joseph N., 45 A.D.3d 849, 846 N.Y.S.2d 359; Matter of Viergela A., 40 A.D.3d 630, 835 N.Y.S.2d 373; Matter of Samantha P., 297 A.D.2d 348, 746 N.Y.S.2d 844). In order to vacate her default, the mother was required to show that there was a reasonable excuse for the default and a potentially meritorious defense ( see Matter of Viergela A., 40 A.D.3d 630, 835 N.Y.S.2d 373; Matter of Iris R., 295 A.D.2d 521, 744 N.Y.S.2d 685; Matter of Angel Joseph S., 282 A.D.2d 752, 724 N.Y.S.2d 336). Here, the mother failed to meet either of these requirements.

The mother's claim that she failed to appear at the continued hearing because she was delayed in traffic was unsupported by any evidence or explanatory details. In fact, the mother never appeared in court on the day of the default ( cf. Matter of Kindra B., 296 A.D.2d 456, 745 N.Y.S.2d 74). Moreover, the proffered explanation was undermined by the fact that the mother did not even advise her attorney of her excuse until almost 90 minutes after the time she was scheduled to appear in court. The mother also failed to demonstrate a potentially meritorious defense ( see Matter of Capri Alexis R., 48 A.D.3d 821, 852 N.Y.S.2d 386).

The mother's remaining contentions are without merit.

*763 Accordingly,...