Appellate Division of the Supreme Court of New York, 2012

Mongitore v. Linz

Appellate Division of the Supreme Court of New York · Decided May 15, 2012

95 A.D.3d 1130; 943 N.Y.S.2d 899

Cases that cite this one

14 later published cases cite this decision.

Matter of Hines v. Baptiste (Appellate Division of the Supreme Court of New York 2019)
Matter of Thompson-Richmond v. Perez (Appellate Division of the Supreme Court of New York 2018)
Matter of Lando v. Lando (Appellate Division of the Supreme Court of New York 2018)
Matter of Stephanie F. v. Leon H. (Appellate Division of the Supreme Court of New York 2018)
Matter of Idieru v. Jeanpierre (Appellate Division of the Supreme Court of New York 2014)
Nunez v. Lopez (Appellate Division of the Supreme Court of New York 2013)
Nunez v. Lopez (Appellate Division of the Supreme Court of New York 2013)
Matter of Ignatieva v. Sullivan (Appellate Division of the Supreme Court of New York 2019)
Matter of Serwatka v. Serwatka (Appellate Division of the Supreme Court of New York 2017)
Matter of Williams v. Williams (Appellate Division of the Supreme Court of New York 2017)
Matter of Kimberly S.K. (Kimberly K.) (Appellate Division of the Supreme Court of New York 2017)
Matter of Gastaldi v. Gastaldi (Appellate Division of the Supreme Court of New York 2015)
Cummings v. Rosoff (Appellate Division of the Supreme Court of New York 2012)
Cummings v. Rosoff (Appellate Division of the Supreme Court of New York 2012)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In a family offense proceeding pursuant to Family Court Act article 8, the father appeals from an order of the Family Court, Nassau County (Eisman, J.), dated January 14, 2011, which denied his motion pursuant to CPLR 5015 (a) (1) to vacate an order of protection of the same court dated August 17, 2010, entered upon his default in appearing at a hearing.

Ordered that the order dated January 14, 2011, is affirmed, without costs or disbursements.

A party seeking to vacate an order entered on default must establish that there was a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015 [a] [1]; Matter *1131of Gustave-Francois v Francois, 88 AD3d 881 [2011]; Matter of Coates v Lee, 32 AD3d 539 [2006]; Matter of Vanessa F., 9 AD3d 464 [2004]). Here, the father had failed to appear for a hearing on the mother’s family offense petition. In moving to vacate the resulting order of protection entered on his default, the father provided a reasonable excuse for his failure to appear, but no potentially meritorious defense to the petition. His conclusory assertion that he had a meritorious defense was insufficient (see Matter of Atkin v Atkin, 55 AD3d 905 [2008]). The father’s remaining contention with respect to the Family Court’s denial of his motion is without merit. Consequently, the Family Court did not err in denying the father’s motion (see Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Matter of Iris R., 295 AD2d 521, 522 [2002]; Matter of Shirley C., 145 AD2d 631, 632 [1988]). Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.