| Matter of Orange County Dept. of Social Servs. v Germel Y. |
| 2012 NY Slip Op 08746 [101 AD3d 1019] |
| December 19, 2012 |
| Appellate Division, Second Department |
| In the Matter of Orange County Department of Social Services, onBehalf of Misty F.-R., Respondent, v Germel Y., Appellant. (Proceedings No. 1 and2.) |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Howard A. Fields of counsel), forrespondent.
In a paternity proceeding pursuant to Family Court Act article 5-B, and a related childsupport proceeding pursuant to Family Court Act article 4, Germel Y. appeals from an order ofthe Family Court, Orange County (Woods, J.), dated January 3, 2012, which denied hisobjections to an order of the same court (Patsalos, S.M.), dated September 21, 2011, which, aftera hearing, denied his motions to vacate an order of filiation and an order of support, both enteredJune 23, 2008, upon his default in answering or appearing.
Ordered that the order dated January 3, 2012, is affirmed, without costs or disbursements.
The Family Court's denial of the appellant's objections to the Support Magistrate's order wasproper. The Support Magistrate appropriately treated the appellant's motions, which did notspecify their precise statutory basis, as having been made pursuant to CPLR 5015 (a) (1),inasmuch as they asserted that the appellant "had no prior notice and had a reasonable excuse forhis failure to appear and a meritorious defense" to the petition, and sought "an order restoring thematter to the Calendar" (see CPLR 5015 [a] [1]; Electric Ins. Co. v Grajower, 256AD2d 833, 833-834 [1998]).
The Support Magistrate properly determined that the appellant's motions to vacate two ordersentered upon his default were untimely. The appellant failed to rebut the prima facie proof thatthe orders entered upon his default were served on him in 2008 (see Deutsche Bank Natl. Trust Co. vMatos, 77 AD3d 606, 607 [2010]; Matter of Rodriguez v Wing, 251 AD2d 335,336 [1998]; cf. Segarra v Evans, 48AD3d 543 [2008]), and thus, his motions in 2011 to vacate those orders on the basis ofexcusable default were properly denied as untimely (see CPLR 5015 [a] [1]; Matter of Weintrob v Weintrob, 87AD3d 749, 750 [2011]).
The Support Magistrate also properly determined that the motions should be denied on themerits. A movant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrateboth a reasonable excuse for the default and the existence of a potentially meritorious defense (see [*2]Matter of Martin v Cooper, 96 AD3d 849, 850 [2012]; Matter of Proctor-Shields v Shields, 74AD3d 1347, 1348 [2010]). Contrary to the appellant's contention, his conclusory andunsubstantiated denial of service of the underlying petition lacked the factual specificitynecessary to rebut the prima facie proof of proper service established by the process server'saffidavit of service (see Indymac Fed.Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983,984, 985 [2010]; Scarano v Scarano,63 AD3d 716 [2009]; cf. WellsFargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]; Bankers Trust Co. of Cal. vTsoukas, 303 AD2d 343, 344 [2003]). Therefore, he failed to establish a reasonable excusefor his default under CPLR 5015 (a) (1). That failure mandated the denial of the appellant'sobjections, and the underlying motions to vacate, without the need of reaching the issue ofwhether appellant had a potentially meritorious defense (see Matter of Martin v Cooper,96 AD3d at 850; Matter of Proctor-Shields v Shields, 74 AD3d at 1348). Rivera, J.P.,Dillon, Roman and Cohen, JJ., concur.