| Matter of Heinz v Faljean |
| 2008 NY Slip Op 09791 [57 AD3d 665] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Nancy Heinz, Respondent, v Mark Faljean,Appellant. |
—[*1] Lawrence H. Katz, Staten Island, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from anorder of commitment of the Family Court, Richmond County (DiDomenico, J.), dated July 9, 2007,which, upon two orders of the same court (Weir-Reeves, S.M.), also dated July 9, 2007, finding, uponhis failure to appear, that he willfully violated a prior order of support and recommending that he beincarcerated for a term of six months, and upon an order of the same court (Weir-Reeves, S.M.), datedJune 28, 2007, denying his motion to vacate the default in appearing, in effect, confirmed the finding ofwillfulness and committed him to the New York City Department of Correction for a term ofimprisonment of six months with the opportunity to purge the contempt by payment of the sum of$18,266.98 toward his arrears.
Ordered that the appeal from so much of the order of commitment as committed the father to theNew York City Department of Correction for a term of imprisonment of six months is dismissed asacademic, without costs and disbursements, as the period of incarceration has expired (see Matter of Greene v Holmes, 31 AD3d760 [2006]; Matter of Bradley vBeneduce, 24 AD3d 546 [2005]); and it is further,
Ordered that the order of commitment is affirmed insofar as reviewed, without costs ordisbursements.
Contrary to the father's contention, the mother satisfied her burden of presenting prima facie [*2]evidence of nonpayment of child support (see Matter of Powers vPowers, 86 NY2d 63, 69 [1995]). The burden then shifted to the father to offer competent,credible evidence of his inability to comply with the support order (see Family Ct Act §454 [3] [a]; Matter of Powers v Powers, 86 NY2d at 69-70). The father, however, failed toappear for the hearing, and a finding of willfulness was properly entered on default.
Furthermore, the court properly denied the father's motion to vacate the default. "A defendantseeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both areasonable excuse for the default and the existence of a meritorious defense" (Dominguez v Carioscia, 1 AD3d 396,397 [2003]; see Kaplinsky v Mazor, 307 AD2d 916 [2003]; O'Leary v Noutsis, 303AD2d 664 [2003]; Silverman v Deutsch, 283 AD2d 478 [2001]). Here, the father failed topresent a reasonable excuse for the default or a meritorious defense.
The father's remaining contentions are without merit. Mastro, J.P., Rivera, Fisher and Eng, JJ.,concur.