| Matter of Jones v Stewart |
| 2009 NY Slip Op 04902 [63 AD3d 836] |
| June 9, 2009 |
| Appellate Division, Second Department |
| In the Matter of Daryl Jones, Respondent, v DeniseStewart, Appellant. |
—[*1] Karen P. Simmons, Brooklyn, N.Y. (Lisa Ruesch and Barbara H. Dildine of counsel),attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Kings County (O'Shea, J.), dated April 4, 2008, which deniedher motion to vacate an order of the same court dated October 1, 2007, which, upon her defaultin appearing at a hearing, awarded custody of the subject children to the father.
Ordered that the order is affirmed, without costs or disbursements.
The mother's contention that the court erred in denying her motion to vacate the orderawarding custody to the father is without merit. A party seeking to vacate an order entered uponhis or her default must establish that there was a reasonable excuse for the default and ameritorious defense to the relief sought in the petition (see Matter of Princess M., 58 AD3d 854 [2009]; Matter of Atkin v Atkin, 55 AD3d905 [2008]). Although the mother established that she had a reasonable excuse for herdefault, she failed to establish that she had a meritorious defense. Therefore, the Family Courtproperly denied her motion to vacate the order awarding custody to the father. Mastro, J.P.,Miller, Chambers and Austin, JJ., concur.