| Matter of Johnson v Lee |
| 2011 NY Slip Op 07841 [89 AD3d 733] |
| November 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Tyrell Johnson, Respondent, v Taray Lee,Appellant. |
—[*1] Etta Ibok, Brooklyn, N.Y., for respondent.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order ofthe Family Court, Kings County (O'Shea, J.), dated September 14, 2010, which denied hermotion to vacate an order of the same court dated February 11, 2010, which, upon her default inappearing, awarded custody of the subject child to the father.
Ordered that the order dated September 14, 2010, is reversed, on the facts and in the exerciseof discretion, without costs or disbursements, the mother's motion to vacate the order datedFebruary 11, 2010, is granted, the order dated February 11, 2010, is vacated, and the matter isremitted to the Family Court, Kings County, for further proceedings on the petition.
A party seeking to vacate a default must establish a reasonable excuse for the default and apotentially meritorious defense (see CPLR 5015 [a] [1]; Matter of Dellagatta v McGillicuddy,31 AD3d 549, 550 [2006]; Matterof Oliphant v Oliphant, 21 AD3d 376 [2005]; Matter of Butterworth v Sperber, 6 AD3d 530 [2004]). However,the general rule with respect to opening defaults in civil actions "is not to be rigorously applied tocases involving child custody" (Gorsky v Gorsky, 148 AD2d 674, 674 [1989]; see Ito v Ito, 73 AD3d 983 [2010];D'Alleva v D'Alleva, 127 AD2d 732, 734 [1987]).
Under the circumstances presented, and recognizing that the law favors resolution on themerits in child custody proceedings (seeMatter of Lee v Morgan, 67 AD3d 681 [2009]; Matter of Pinto v Putnam CountySupport Collection Unit, 295 AD2d 350, 351 [2002]; Matter of Tauber v Tauber, 152AD2d 674 [1989]), the Family Court should have granted the mother's motion to vacate thecustody order entered upon her default in appearing. Accordingly, we reverse the order appealedfrom and remit the matter to the Family Court, Kings County, for further proceedings on thepetition. Rivera, J.P., Eng, Belen and Austin, JJ., concur.