| Matter of Mongitore v Linz |
| 2012 NY Slip Op 03844 [95 AD3d 1130] |
| May 15, 2012 |
| Appellate Division, Second Department |
| In the Matter of Nicole Marie Mongitore,Respondent, v Jesse A. Linz, Appellant. |
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Lewisohn & Lewisohn, Lynbrook, N.Y. (Carol J. Lewisohn of counsel), for respondent. Ngozi Rosaline Asonye, Freeport, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, the father appeals froman order of the Family Court, Nassau County (Eisman, J.), dated January 14, 2011, which deniedhis motion pursuant to CPLR 5015 (a) (1) to vacate an order of protection of the same courtdated August 17, 2010, entered upon his default in appearing at a hearing.
Ordered that the order dated January 14, 2011, is affirmed, without costs or disbursements.
A party seeking to vacate an order entered on default must establish that there was areasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a] [1]; Matter of Gustave-Francois vFrancois, 88 AD3d 881 [2011]; Matter of Coates v Lee, 32 AD3d 539 [2006]; Matter of Vanessa F., 9 AD3d 464[2004]). Here, the father had failed to appear for a hearing on the mother's family offensepetition. In moving to vacate the resulting order of protection entered on his default, the fatherprovided a reasonable excuse for his failure to appear, but no potentially meritorious defense tothe petition. His conclusory assertion that he had a meritorious defense was insufficient (see Matter of Atkin v Atkin, 55 AD3d905 [2008]). The father's remaining contention with respect to the Family Court's denial ofhis motion is without merit. Consequently, the Family Court did not err in denying the father'smotion (see Fekete v Camp Skwere,16 AD3d 544, 545 [2005]; Matter of Iris R., 295 AD2d 521, 522 [2002]; Matterof Shirley C., 145 AD2d 631, 632 [1988]). Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ.,concur.