| Matter of Davis v Davis |
| 2011 NY Slip Op 04246 [84 AD3d 1080] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of Tracy B. Davis, Appellant, v Ayeronde C.Davis, Respondent. |
—[*1] Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for respondent.
In related custody proceedings pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Kings County (Hepner, J.), dated October 27, 2009, which,inter alia, denied her motion to vacate her default in responding to the father's petition to modifya prior order of custody dated August 16, 2007, to vacate an order of the same court datedNovember 18, 2008, granting the father's petition, and for a hearing on the issue of whetherservice was properly effected upon her pursuant to Family Court Act § 617.
Ordered that the order dated October 27, 2009, is affirmed, without costs or disbursements.
" 'Generally, a process server's affidavit of service establishes a prima facie case as to themethod of service and, therefore, gives rise to a presumption of proper service' " (Engel v Boymelgreen, 80 AD3d653, 654 [2011], quoting Washington Mut. Bank v Holt, 71 AD3d 670, 670 [2010]; see Tikvah Enters., LLC v Neuman, 80AD3d 748, 749 [2011]; City ofNew York v Miller, 72 AD3d 726, 727 [2010]). However, where a defendant submits asworn denial of receipt of papers that allegedly were served, which contains specific facts torebut the statements in the process server's affidavit, it is generally sufficient to rebut thepresumption of proper service, and necessitates an evidentiary hearing (see Engel vBoymelgreen, 80 AD3d at 654; Tikvah Enters., LLC v Neuman, 80 AD3d at 749;City of New York v Miller, 72 AD3d at 727). Here, the mother's bare denial of servicewas insufficient to rebut the prima facie proof of proper service of the summons and petitionestablished by the process server's affidavit. Accordingly, the Family Court properly determinedthat no hearing was warranted (see Tikvah Enters., LLC v Neuman, 80 AD3d at 749;City of New York v Miller, 72 AD3d at 727).
" 'The determination whether to relieve a party of an order entered upon his or her default is amatter left to the sound discretion of the Family Court' " (Matter of Cassidy Sue R., 58 AD3d 744, 745 [2009], quoting Matter of Francisco R., 19 AD3d502 [2005]; see Matter of Tenisha Tishonda T., 302 AD2d 534, 534 [2003]), and aparty seeking to vacate an order entered upon his or her default must establish that there was areasonable excuse for the default and a potentially meritorious defense to the relief sought in[*2]the petition (see Matter of Zuleyka D. [Dexter D.], 69 AD3d 850, 851 [2010];Matter of Francisco R., 19 AD3d at 502).
Here, the Family Court providently exercised its discretion in denying those branches of themother's motion which were to vacate her default in opposing the father's petition to modify aprior custody order and to vacate the order of custody entered upon her default in appearing,inasmuch as she failed to demonstrate a reasonable excuse for the default and a potentiallymeritorious defense to the relief sought in the petition (see Matter of Dominique Beyonce R. [Maria Isabel R.], 82 AD3d984 [2011]; Matter of Cassidy SueR., 58 AD3d 744 [2009]; Gorsky v Gorsky, 148 AD2d 674, 674-675 [1989]).Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.