Matter of Lee v. Morgan
| Decision Date | 04 November 2009 |
| Docket Number | 2008-10561. |
| Citation | 67 A.D.3d 681,2009 NY Slip Op 08011,889 N.Y.S.2d 205 |
| Parties | In the Matter of LISA LEE, Respondent, v. ERIC MORGAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order dated November 13, 2008, is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion is granted, the order dated October 24, 2008, is vacated, and the matter is remitted to the Family Court, Queens County, for further proceedings.
By order dated October 24, 2008, the Family Court granted the mother's petition to modify an order of the same court dated May 16, 2008, so as to allow her to relocate with the subject child to the State of Connecticut based upon the father's failure to appear on the return date of the petition. In an order dated November 13, 2008, the Family Court denied the father's motion to vacate the order dated October 24, 2008. We reverse.
"A party seeking to vacate a default must establish a reasonable excuse for the default and a meritorious case" (Matter of Butterworth v Sperber, 6 AD3d 530 [2004]; see CPLR 5015 [a] [1]; Matter of Dellagatta v McGillicuddy, 31 AD3d 549 [2006]; Matter of Oliphant v Oliphant, 21 AD3d 376 [2005]). The question of "whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court" (Matter of Fierro v Fierro, 211 AD2d 676, 678 [1995]).
Under the circumstances presented, the father established a reasonable excuse for his default based on his reasonable belief that the matter would be adjourned (see Matter of Dellagatta v McGillicuddy, 31 AD3d 549 [2006]; Matter of Cohen v Seletsky, 142 AD2d 111, 117 [1988]). In addition, the father...
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