| Matter of Qadeera Tonezia D. |
| 2008 NY Slip Op 07662 [55 AD3d 606] |
| October 7, 2008 |
| Appellate Division, Second Department |
| In the Matter of Qadeera Tonezia D. Abbott House, Inc., et al.,Respondents; Cassandra D., Appellant. (Proceeding No. 1.) In the Matter of Qadeem D. AbbottHouse, Inc., et al., Respondents; Cassandra D., Appellant. (Proceeding No. 2.) In the Matter ofQashanda Tannell D., Also Known as Quashandra D. Abbott House, Inc., et al., Respondents;Cassandra D., Appellant. (Proceeding No. 3.) In the Matter of Ka'Von Tyreece J., Also Known asKavon D. Abbott House, Inc., et al., Respondents; Cassandra D., Appellant. (Proceeding No.4.) |
—[*1][*2] Magovern & Sclafani, New York, N.Y. (Joanna M. Roberson and Frederick J. Magovern ofcounsel), for respondent Abbot House, Inc. Steven P. Forbes, Jamaica, N.Y., attorney for the children Qadeera Tonezia D., Qadeem D., andQashanda Tannell D., also known as Quashandra D. Daniel E. Lubetsky, Jamaica, N.Y., attorney for the child Ka'Von Tyreece J., also known asKavon D.
In related proceedings pursuant to Social Services Law § 384-b to terminate parental rightson the ground of permanent neglect, the mother appeals from an order of the Family Court, QueensCounty (Salinitro, J.), dated September 17, 2007, which denied her motion to vacate her default inappearing at the fact-finding and dispositional hearing.
Ordered that the order is reversed, on the law, without costs or disbursements, the mother's motionto vacate her default is granted, the four orders of disposition dated September 18, 2007, respectively,terminating the mother's parental rights as to each child, are vacated, and the petitions are dismissed.
Under CPLR 5015 (a) (4), a default must be vacated once a movant demonstrates lack ofjurisdiction (see Citibank v Keller, 133 AD2d 63, 64-65 [1987]). "Although a party moving tovacate a default must normally demonstrate a reasonable excuse and a meritorious defense (seeCPLR 5015 . . . ) the movant is relieved of that obligation when lack of personaljurisdiction is asserted as the ground for vacatur" (Harkless v Reid, 23 AD3d 622, 622-623 [2005]; Steele vHempstead Pub Taxi, 305 AD2d 401, 402 [2003]).
Here, it is undisputed that there was no affidavit of service with respect to service upon the mother.Moreover, the mother did not appear in court and participate in the merits of the proceeding.Therefore, she did not waive her jurisdictional objection (see Pendergrast v St. Mary's Hosp.,156 AD2d 436 [1989]; cf. Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [1995];Matter of Rosso v Rosso, 171 AD2d 797 [1991]). Accordingly, the Family Court should havevacated the mother's default on jurisdictional grounds (see Citibank v Keller, 133 AD2d at64-65).
In light of this determination, the mother's remaining contentions need not be reached. Mastro, J.P.,Angiolillo, Carni and Eng, JJ., concur.