Mondelus v. Emile
| Decision Date | 13 May 2020 |
| Docket Number | Docket No. V-7640-09/17J,2019–02597 |
| Parties | In the Matter of Morales MONDELUS, Respondent, v. Tania EMILE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
183 A.D.3d 743
121 N.Y.S.3d 666 (Mem)
In the Matter of Morales MONDELUS, Respondent,
v.
Tania EMILE, Appellant.
2019–02597
Docket No. V-7640-09/17J
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 2, 2020
May 13, 2020
Marjorie G. Adler, Garden City, NY, for appellant.
Law Office of John M. Zenir, Esq., P.C., Garden City, NY, for respondent.
Mitra K. Zervos, Great Neck, NY, attorney for the child.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Sharon N. Clarke, Ct. Atty. Ref.), dated January 18, 2019. The order denied the mother's motion to vacate an order of the same court dated August 27, 2018, upon her failure to appear at a hearing, granting the father's petition to modify an order of the same court dated February 21, 2012, so as to award him sole residential and joint legal custody of the parties' child.
ORDERED that the order dated January 18, 2019, is affirmed, without costs or disbursements.
The father filed a petition to modify an order of custody so as to award him sole residential and joint legal custody of the parties' child. In an order dated August 27, 2018, upon the mother's failure to appear at a hearing, the Family Court granted the father's petition. The mother then moved pursuant to CPLR 5015(a)(1) to vacate that order, arguing that she had a reasonable excuse for her failure to appear in that she had a new baby and was dealing with unspecified family issues, and that she had a potentially meritorious defense to the allegations in the petition. The court denied the mother's motion, and the mother appeals.
"A party seeking to vacate a default [pursuant to CPLR 5015(a)(1) ] must establish a reasonable excuse for the default and a potentially meritorious defense" ( Matter of Johnson v. Lee, 89 A.D.3d 733, 733, 931 N.Y.S.2d 901 ; see CPLR 5015[a][1] ; Matter...
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...her default, we need not reach the issue of whether she established her fitness to serve as guardian (see Matter of Mondelus v. Emile, 183 A.D.3d 743, 744, 121 N.Y.S.3d 666 ). CHAMBERS, J.P., MILLER, BARROS and IANNACCI, JJ.,...
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...establish a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1] ; Matter of Mondelus v. Emile, 183 A.D.3d 743, 744, 121 N.Y.S.3d 666 ; Matter of Johnson v. Lee, 89 A.D.3d 733, 733, 931 N.Y.S.2d 901 ). The determination of what constitutes a reasonabl......
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...for her default, we need not reach the issue of whether she established her fitness to serve as guardian (see Matter of Mondelus v Emile, 183 A.D.3d 743, 744). CHAMBERS, J.P., MILLER, BARROS and IANNACCI, JJ., concur. ...