| Matter of Samantha B. (Arthur Eugene S.) |
| 2010 NY Slip Op 02948 [72 AD3d 682] |
| April 6, 2010 |
| Appellate Division, Second Department |
| In the Matter of Samantha B., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Arthur Eugene S., Jr., Appellant, et. al.,Respondents. (Proceeding No. 1.) In the Matter of Legend B., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Arthur Eugene S., Jr., Appellant, et al.,Respondents. (Proceeding No. 2.) In the Matter of Alexander B., a Child Alleged to beNeglected. Administration for Children's Services, Respondent; Arthur Eugene S., Jr., Appellant,et al., Respondents. (Proceeding No. 3.) |
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In related child neglect proceedings pursuant to Family Court Act article 10, Arthur EugeneS. appeals from (1) an order of the Family Court, Kings County (Grosvenor, J.), dated February5, 2009, which denied his motion to vacate an order of fact-finding of the same court datedSeptember 29, 2008, entered upon his default, and (2) an order of disposition of the same courtdated April 1, 2009, which, upon his default, directed the release of the subject children to themother's custody and directed him to complete a sex-offender rehabilitation program.
Ordered that the appeal from the order of disposition dated April 1, 2009, is dismissed,without costs or disbursements, as no appeal lies from an order entered on the default of theappealing party (see CPLR 5511; Matter of Geraldine Rose W., 196 AD2d 313[1994]); and it is further,
Ordered that the order dated February 5, 2009, is affirmed, without costs or [*2]disbursements.
The Family Court providently exercised its discretion in denying the motion of the appellant,a "person legally responsible for the child's care" (Family Ct Act § 1042), to vacate afact-finding order entered upon his default in appearing at the fact-finding hearing, as he"willfully refused to appear at the hearing" (id.). In moving to vacate his default, theappellant informed the Family Court that he was taking medication which rendered him unableto function. However, he failed to submit any evidence as to the nature of the medication, whyhe was taking it, and its effects on him. Moreover, the appellant had an extensive history of bothlateness and failing to appear throughout the proceedings. Accordingly, the Family Courtproperly concluded that the appellant willfully failed to appear at the hearing (id.; see Matter of John R., 49 AD3d544, 545 [2008]; Matter ofViergela A., 40 AD3d 630, 631-632 [2007]; Matter of Baby Boy P., 287 AD2d458, 458 [2001]; Matter of Irvin R., 257 AD2d 624, 624-625 [1999]; Matter ofClifford J., 238 AD2d 244 [1997]; Matter of Commissioner of Social Servs. v MargaretD., 221 AD2d 439 [1995]). Moreover, the appellant failed to set forth a meritorious defenseto the allegations in the petition (see Family Ct Act § 1042). The conclusoryassertions in his moving papers, without more, were insufficient to establish the existence of ameritorious defense (see Matter ofAtkin v Atkin, 55 AD3d 905 [2008]; Matter of Coates v Lee, 32 AD3d 539 [2006]; Matter of Vanessa F., 9 AD3d464, 464 [2004]; Matter of Iris R., 295 AD2d 521, 522 [2002]; Matter of JazelDominique D., 209 AD2d 410, 411 [1994]). Dillon, J.P., Balkin, Dickerson and Lott, JJ.,concur.