| Matter of Lastanzea L. (Lakesha L.) |
| 2011 NY Slip Op 06752 [87 AD3d 1356] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Lastanzea L. and Others, Infants. Oneida CountyDepartment of Social Services, Respondent; Lakesha L., Appellant. (Appeal No.2.) |
—[*1] John A. Herbowy, Utica, for petitioner-respondent. John G. Koslosky, Attorney for the Children, Utica, for Lastanzea L., Ivanna L., Samya L.,Deajah L. and Shaviontae L.
Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), enteredFebruary 9, 2010 in a proceeding pursuant to Social Services Law § 384-b. The orderdenied the motion of respondent to vacate a prior order entered upon her default.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent mother appeals from an order entered upon herdefault that, inter alia, revoked a suspended judgment and terminated her parental rights withrespect to the five children who are the subjects of this proceeding. The mother failed to appearat the hearing on the petition seeking revocation of the suspended judgment and, although herattorney was present at the hearing, he did not participate therein. "[I]n light of her [attorney's]election to stand mute," the mother's unexplained failure to appear at the hearing constituted adefault (Matter of Miguel M.-R.B.,36 AD3d 613, 614 [2007], lv dismissed 8 NY3d 957 [2007]). We therefore dismissthe appeal from the order in appeal No. 1 (see Matter of Tiara B. [appeal No. 2], 64AD3d 1181, 1182 [2009]).
In appeal No. 2, the mother appeals from an order denying her motion to vacate the order inappeal No. 1 entered upon her default. Family Court properly exercised its discretion in denyingthe motion. Contrary to the mother's contention, her incarceration at the time of the hearing doesnot constitute a reasonable excuse for her default because she failed to provide a credibleexplanation for her failure to advise her attorney, the court or petitioner of her unavailability (see Matter of Fa'Shon S., 40 AD3d863 [2007]; Matter of Ashley Marie M., 287 AD2d 333 [2001]). The mother alsofailed to demonstrate a meritorious defense or to explain her 11-month delay in seeking to vacatethe order in appeal No. 1 (see Matter ofTashona Sharmaine A., 24 AD3d 135 [2005], lv denied 6 NY3d 715 [2006];Ashley Marie M., 287 AD2d at 334). Present—Smith, J.P., Centra, Carni, Greenand Martoche, JJ.