| Matter of Cummings v Rosoff |
| 2012 NY Slip Op 08306 [101 AD3d 713] |
| December 5, 2012 |
| Appellate Division, Second Department |
| In the Matter of Heather J. Cummings, Respondent, v NeilRosoff, Appellant. (Proceedings No. 1, 2 and 3.) In the Matter of Neil Rosoff, Appellant, vHeather J. Cummings, Respondent. (Proceedings No. 4 and 5.) |
—[*1] Lieberman & LeBovit, Yorktown Heights, N.Y. (Mitchell Lieberman of counsel), forrespondent.
In four related custody and visitation proceedings pursuant to Family Court Act article 6, anda related family offense proceeding pursuant to Family Court Act article 8, the father appealsfrom an order of the Family Court, Dutchess County (Posner, J.), dated December 12, 2011,which denied his motion to vacate (1) an order of the same court dated March 14, 2011, awardingcustody of the subject children to the mother with supervised visitation to him upon his default inappearing for a scheduled court date, (2) an order of the same court, also dated March 14, 2011,dismissing his petition for custody upon his default in appearing for a scheduled court date, and(3) an order of protection of the same court, also dated March 14, 2011, in effect, upon a findingthat he committed the family offenses of harassment in the first degree and harassment in thesecond degree, made upon his default in appearing for a scheduled court date, inter alia, directinghim to stay away from the mother and the subject children for a period of two years except forsupervised visitation.
Ordered that the order dated December 12, 2011, is reversed, on the facts and in the exerciseof discretion, without costs or disbursements, the father's motion to vacate the orders and theorder of protection dated March 14, 2011, is granted, the orders and the order of protection datedMarch 14, 2011, are vacated, and the matter is remitted to the Family Court, Dutchess County,for further proceedings on the petitions.
"A party seeking to vacate an order entered upon his or her default is required to demonstratea reasonable excuse for the default and the existence of a potentially meritorious cause of actionor defense" (Matter of Lorraine D. vWidmack C., 79 AD3d 745, 745 [2010]; see CPLR 5015 [a]; Matter of Mongitore v Linz, 95 AD3d1130 [2012]; Matter of Jurow vCahill, 56 AD3d 559, 559-560 [2008]). However, "the law favors resolution on themerits in child custody proceedings," and thus the "general rule with respect to opening defaultsin civil actions is not to be rigorously applied to cases involving child custody" (Matter of Johnson v Lee, 89 AD3d733, 733 [2011] [internal quotation marks [*2]omitted]; see Lueders v Boma-Lueders, 85 AD3d1130, 1131 [2011]; Ito v Ito, 73AD3d 983 [2010]).
Under the particular circumstances presented here, and in light of the policy favoringresolutions on the merits in child custody proceedings, the Family Court improvidently exercisedits discretion in denying the father's motion to vacate his default. Rivera, J.P., Chambers, Halland Lott, JJ., concur.