| Matter of Olds v Binyard |
| 2009 NY Slip Op 05866 [64 AD3d 658] |
| July 14, 2009 |
| Appellate Division, Second Department |
| In the Matter of Renessta Olds, Respondent, v RobertBinyard, Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Robert Binyard,Appellant, v Renessta K. Olds et al., Respondents. (Proceeding No.2.) |
—[*1] Jeffrey C. Bluth, Brooklyn, N.Y., for petitioner-respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel),attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Kings County (Graham, J.), dated May 2, 2008,which denied his motion to vacate an order of the same court dated October 13, 2006, enteredupon his default in appearing or answering, granting the petition of a maternal aunt for an awardof custody of the subject child, and denied, without a hearing, his petition to modify the orderdated October 13, 2006.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court providently exercised its discretion in denying the father's motion tovacate the custody order entered upon his default as the father failed to demonstrate either areasonable excuse for the default or a meritorious defense to the petition for custody (see Matter of Taylor v Staples, 33AD3d 1089 [2006]; Matter of Burns v Carriere-Knapp, 278 AD2d 542 [2000]).
Additionally, the Family Court properly denied, without a hearing, the father's petition tomodify the custody order. Contrary to the father's contention, the Family Court applied theappropriate standard (see Matter ofMetcalf v Odums, 35 AD3d 865 [2006]; Matter of Fishburne v Teelucksingh, 34 AD3d 804 [2006]; Matter of Guinta v Doxtator, 20 AD3d47, 51 [2005]). Here, the father failed to make a sufficient showing of a change ofcircumstances to warrant a hearing (seeSpratt v Fontana, 46 AD3d 670 [2007]; McNally v McNally, 28 AD3d 526 [2006]). Mastro, J.P.,Dickerson, Eng and Hall, JJ., concur.