| Matter of Wen Zong Yu v Fan |
| 2015 NY Slip Op 00776 [124 AD3d 906] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Wen Zong Yu,Appellant, v Hua Fan, Respondent. |
Wen Zong Yu, Flushing, N.Y., appellant pro se.
Appeal from an order of the Family Court, Queens County (Stephen J. Bogacz, J.),dated March 7, 2014. The order denied the father's objections to a prior order of thatcourt (Sudeep Kaur, S.M.) dated February 6, 2014, which, upon his failure to appear on ascheduled court date, in effect, denied his petition for a downward modification of hischild support obligation.
Ordered that the order is affirmed, without costs or disbursements; and it isfurther,
Ordered that on the Court's own motion, the parties are directed to show cause whyan order should or should not be made and entered imposing such sanctions and costs, ifany, against the father pursuant to 22 NYCRR 130-1.1 (c) as this Court may deemappropriate, by filing an affidavit on that issue in the office of the Clerk of this Court andserving one copy of the same on each other on or before March 4, 2015; and it isfurther,
Ordered that the Clerk of the Court, or her designee, is directed to serve the partieswith a copy of this decision and order by regular mail.
The Family Court properly denied the father's objections to the Support Magistrate'sorder dated February 6, 2014, entered upon the father's failure to appear for a scheduledcourt date. The proper procedure to challenge an order entered upon default is to move tovacate the default and, if necessary, to appeal from the denial of that motion (seeCPLR 5015 [a] [1]; Matterof Taurins v Taurins, 108 AD3d 723, 724 [2013]; Matter of Garland v Garland,28 AD3d 481, 481 [2006]). Accordingly, the merits of the father's contentions maynot be raised on this appeal (see Matter of Taurins v Taurins, 108 AD3d at 724;Matter of Garland v Garland, 28 AD3d at 481).
This Court previously determined that the father's contentions with respect topaternity DNA testing were barred by the doctrine of collateral estoppel (see Matter of Hua Fan v Wen ZongYu, 91 AD3d 952 [2012]). As the father continues to assert those contentions onthis appeal, his conduct in pursuing this appeal appears to be (a) completely withoutmerit in law or fact and unsupported by a reasonable argument for an extension,modification, or reversal of existing law, or (b) undertaken primarily to delay or prolongthe resolution of litigation or to harass or maliciously injure another (see Rules ofChief Admin of Cts [22 NYCRR] § 130-1.1 [c]; Ackermann v Ackermann, 82AD3d 1020 [2011];Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749 [2010];Weinstock v Weinstock, 253 AD2d 873, 874 [1998]). Accordingly, we direct theparties to submit an [*2]affidavit on the issue of theimposition of sanctions and/or costs, if any, against the father pursuant to 22 NYCRR130-1.1 (c). Skelos, J.P., Austin, Roman and LaSalle, JJ., concur.