Weintrob v. Weintrob

• Decision Date: 30 August 2011
• Docket Number: ON MOTION Docket No. F-2244-06,2010-00731
• Parties: In the Matter of Josie May Weintrob, respondent, v. Gary Weintrob, appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 06387

In the Matter of Josie May Weintrob, respondent,
v.
Gary Weintrob, appellant.

2010-00731
ON MOTION Docket No. F-2244-06

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on August 30, 2011

PETER B. SKELOS, J.P.
RANDALL T. ENG
L. PRISCILLA HALL
PLUMMER E. LOTT, JJ.

DECISION & ORDER

Motion by the appellant for leave to reargue an appeal from an order of the Family Court, Kings County (Freeman, J.), dated December 18, 2009, which was determined by decision and order of this Court dated February 15, 2011.

Upon the papers filed in support of the motion, and no papers having been filed in opposition or relation thereto, it is

ORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated February 15, 2011 (Matter of Weintrob v Weintrob, 81 AD3d 840), is recalled and vacated, and the following decision and order is substituted therefor:

Herman Kaufman, Port Chester, N.Y., for appellant.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Freeman, J.), dated December 18, 2009, which denied his objections to so much of an order of the same court (Mayeri, S.M.), dated June 8, 2009, as, after a hearing, denied that branch of his motion which was to vacate an order of the same court dated August 14, 2006, which, upon his default in appearing at a hearing, granted the mother's petition and set his child support obligation at the sum of $2,600 per month.

ORDERED that the order dated December 18, 2009, is affirmed, without costs or disbursements.

That branch of the father's motion which was to vacate a child support order dated August 14, 2006, on the basis of excusable default should have been made within one year of service upon him of a copy of the order, with notice of its entry (see CPLR 5015[a]; Matter of Wrighton v Wrighton, 23 AD3d 669; Matter of Bykya Minnie E., 212 AD2d 365, 366). A party to a Family Court proceeding seeking to vacate an order entered upon default must establish that there was a reasonable excuse for the default and a potentially...