Serwatka v. Serwatka

• Citation: 147 A.D.3d 1066,2017 N.Y. Slip Op. 01367,46 N.Y.S.3d 906 (Mem)
• Parties: In the Matter of Bethanne SERWATKA, respondent, v. Joseph SERWATKA, appellant.
• Decision Date: 22 February 2017
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1066
46 N.Y.S.3d 906 (Mem)
2017 N.Y. Slip Op. 01367

In the Matter of Bethanne SERWATKA, respondent,
v.
Joseph SERWATKA, appellant.

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

Feb. 22, 2017.

Salvatore C. Adamo, New York, N.Y., for appellant.

Petito & Petito, LLP, Poughkeepsie, N.Y. (Joseph Petito of counsel), for respondent.

Appeal by the father from an order of the Family Court, Dutchess County (Joan S. Posner, J.), dated March 28, 2016. The order denied his motion to vacate (1) an order of fact-finding and disposition of that court dated September 25, 2015, which granted the petitioner's family offense petition against him, and (2) a related final order of protection against him, also dated September 25, 2015, both of which were entered after inquest upon the father's default in appearing at the fact-finding and dispositional hearings.

ORDERED that the order dated March 28, 2016, is affirmed, without costs and disbursements.

A party seeking to vacate an order entered on default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1] ; Matter of Mongitore v. Linz, 95 A.D.3d 1130, 943 N.Y.S.2d 899 ; Matter of Territo v. Keane, 55 A.D.3d 744, 745, 864 N.Y.S.2d 789 ). "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 Lee v. Morgan, 67 A.D.3d 681, 682, 889 N.Y.S.2d 205 [internal quotation marks omitted]; see Matter of Atkin v. Atkin, 55 A.D.3d 905, 865 N.Y.S.2d 577 ; Matter of Coates v. Lee, 32 A.D.3d 539, 819 N.Y.S.2d 837 ).

Here, the father failed to demonstrate a reasonable excuse for his default in appearing at the fact-finding and dispositional hearings (see Matter of Dominique Beyonce R. [Maria Isabel R.], 82 A.D.3d 984, 985, 918 N.Y.S.2d 577 ; Matter of Nicholas S., 46 A.D.3d 830, 831, 848 N.Y.S.2d 311 ). Since the father failed to demonstrate a reasonable excuse for his default, we need not determine whether he had a potentially meritorious defense (see Matter of Proctor–Shields v. Shields, 74 A.D.3d 1347, 1348, 904 N.Y.S.2d 183 ; Diaz v. Diaz, 71 A.D.3d 947, 948,...