| Matter of Lee v Morgan |
| 2009 NY Slip Op 08011 [67 AD3d 681] |
| November 4, 2009 |
| Appellate Division, Second Department |
| In the Matter of Lisa Lee, Respondent, v Eric Morgan,Appellant. |
—[*1] Lisa Lee, Glen Oaks, N.Y., respondent pro se.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Queens County (Buggs, J.), dated November 13, 2008, whichdenied his motion to vacate an order of the same court dated October 24, 2008, entered upon hisdefault in appearing, granting the mother's petition to modify an order of the same court(McGrady, Ct. Atty. Ref.) dated May 16, 2008, so as to allow her to relocate with the subjectchild to the State of Connecticut. By decision and order on motion of this Court dated December11, 2008 [2008 NY Slip Op 91818(U)], enforcement of the order dated October 24, 2008, wasstayed pending hearing and determination of the appeal from the order dated November 13,2008.
Ordered that the order dated November 13, 2008, is reversed, on the law and in the exerciseof discretion, without costs or disbursements, the motion is granted, the order dated October 24,2008, is vacated, and the matter is remitted to the Family Court, Queens County, for furtherproceedings.
By order dated October 24, 2008, the Family Court granted the mother's petition to modifyan order of the same court dated May 16, 2008, so as to allow her to relocate with the subjectchild to the State of Connecticut based upon the father's failure to appear on the return date of thepetition. In an order dated November 13, 2008, the Family Court denied the father's motion tovacate the order dated October 24, 2008. We reverse.
"A party seeking to vacate a default must establish a reasonable excuse for the default and ameritorious case" (Matter ofButterworth v Sperber, 6 AD3d 530 [2004]; see CPLR 5015 [a] [1]; Matter of Dellagatta v McGillicuddy,31 AD3d 549 [2006]; Matterof Oliphant v Oliphant, 21 AD3d 376 [2005]). The question of "whether to relieve aparty of an order entered on default is a matter left to the sound discretion of the court"(Matter of Fierro v Fierro, 211 AD2d 676, 678 [1995]).
Under the circumstances presented, the father established a reasonable excuse for his [*2]default based on his reasonable belief that the matter would beadjourned (see Matter of Dellagatta vMcGillicuddy, 31 AD3d 549 [2006]; Matter of Cohen v Seletsky, 142 AD2d111, 117 [1988]). In addition, the father established a meritorious defense to the mother's petitionto modify the prior order so as to allow her to relocate with the subject child to the State ofConnecticut (see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). As thisproceeding involves the issue of child custody, the law favors its resolution on the merits (seeMatter of Tauber v Tauber, 152 AD2d 674 [1989]). Covello, J.P., Santucci, Chambers andLott, JJ., concur.