Orange Cnty. Dep't of Soc. Servs. ex rel. Misty F.-R. v. Germel Y.

• Decision Date: 19 December 2012
• Citation: 101 A.D.3d 1019,2012 N.Y. Slip Op. 08746,957 N.Y.S.2d 240
• Parties: In the Matter of ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of MISTY F.-R. (Anonymous), respondent, v. GERMEL Y. (Anonymous), appellant. (Proceeding Nos. 1 and 2).
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1019

957 N.Y.S.2d 240

2012 N.Y. Slip Op. 08746

In the Matter of ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of MISTY F.-R. (Anonymous), respondent,

v.GERMEL Y. (Anonymous), appellant. (Proceeding Nos. 1 and 2).

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

Dec. 19, 2012.

Michael G. Paul, New City, N.Y., for appellant.

David L. Darwin, County Attorney, Goshen, N.Y. (Howard A. Fields of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In a paternity proceeding pursuant to Family Court Act article 5–B, and a related child support proceeding pursuant to Family Court Act article 4, Germel Y. appeals from an order of the Family Court, Orange County (Woods, J.), dated January 3, 2012, which denied his objections to an order of the same court (Patsalos, S.M.), dated September 21, 2011, which, after a hearing, denied his motions to vacate an order of filiation and an order of support, both entered June 23, 2008, upon his default in answering or appearing.

ORDERED that the order dated January 3, 2012, is affirmed, without costs or disbursements.

The Family Court's denial of the appellant's objections to the Support Magistrate's order was proper. The Support Magistrate appropriately treated the appellant's motions, which did not specify their precise statutory basis, as having been made pursuant to CPLR 5015(a)(1), inasmuch as they asserted that the appellant “had no prior notice and had a reasonable excuse for his failure to appear and a meritorious defense” to the petition, and sought “an order restoring the matter to the Calendar” ( seeCPLR 5015[a][1]; Electric Ins. Co. v. Grajower, 256 A.D.2d 833, 833–834, 681 N.Y.S.2d 667).

The Support Magistrate properly determined that the appellant's motions to vacate two orders entered upon his default were untimely. The appellant failed to rebut the prima facie proof that the orders entered upon his default were served on him in 2008 ( see Deutsche Bank Nat. Trust Co. v. Matos, 77 A.D.3d 606, 607, 908 N.Y.S.2d 732;Matter of Rodriguez v. Wing, 251 A.D.2d 335, 336, 673 N.Y.S.2d 734;cf. Segarra v. Evans, 48 A.D.3d 543, 849 N.Y.S.2d 892), and thus, his motions in 2011 to vacate those orders on the basis of excusable default were properly denied as untimely ( seeCPLR 5015[a][1]; Matter of Weintrob v. Weintrob, 87 A.D.3d 749, 750, 929 N.Y.S.2d 865).

The Support Magistrate also properly determined that the motions should be denied on the merits. A movant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense ( see Matter of Martin v. Cooper, 96 A.D.3d 849, 850, 947 N.Y.S.2d 526;Matter of Proctor–Shields v. Shields, 74 A.D.3d 1347, 1348, 904 N.Y.S.2d 183). Contrary to the appellant's contention, his conclusory and unsubstantiated denial of service of the underlying petition lacked the factual specificity necessary to rebut the prima facie proof of proper service established by the process server's affidavit of service ( see Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 952 N.Y.S.2d...