| Matter of Gastaldi v Gastaldi |
| 2015 NY Slip Op 00882 [125 AD3d 657] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Brenda-Marie Gastaldi,Respondent, v Peter Gastaldi, Appellant. (Proceeding No. 1.) In the Matter ofPeter Gastaldi, Appellant, v Brenda-Marie Gastaldi, Respondent. (Proceeding No.2.) |
The Law Offices of Ronald Castorina, Jr., Staten Island, N.Y., for appellant.
Soren Law Group, PLLC, Staten Island, N.Y. (Karen B. Soren of counsel), forrespondent.
Appeal from an order of the Family Court, Richmond County (Arnold Lim, J.), datedApril 22, 2014. The order denied the motion of Peter Gastaldi pursuant to CPLR 5015(a) (1) to vacate (1) an order of that court dated December 12, 2013, which dismissed hisfamily offense petition against Brenda-Marie Gastaldi, (2) an order of fact-finding anddisposition of that court dated December 13, 2013, which granted Brenda-MarieGastaldi's family offense petition against him, and (3) a related final order of protectionagainst him dated December 13, 2013, all of which were entered on his failure to appearfor an adjourned hearing date.
Ordered that the order dated April 22, 2014, is reversed, on the facts and in theexercise of discretion, without costs or disbursements, the appellant's motion pursuant toCPLR 5015 (a) (1) to vacate the order dated December 12, 2013, the order offact-finding and disposition dated December 13, 2013, and the final order of protectiondated December 13, 2013, is granted, those orders are vacated, and the matter is remittedto the Family Court, Richmond County, for further proceedings on the parties' familyoffense petitions.
A party seeking to vacate an order entered upon his or her default is required todemonstrate a reasonable excuse for the default and the existence of a potentiallymeritorious cause of action or defense (see CPLR 5015 [a]; Matter of Mongitore v Linz, 95AD3d 1130 [2012]; Matterof Dos Santos v Dos Santos, 76 AD3d 1013, 1015 [2010]).
Under the particular circumstances of this case, we find that the Family Courtimprovidently exercised its discretion in denying the appellant's timely motion to vacatehis default in appearing at an adjourned hearing date with respect to Brenda-MarieGastaldi's petition for an order of protection against him, as well as with respect to hiscross petition for an order of protection [*2]against her.The appellant established a reasonable excuse for his failure to appear. Further, therecord reflects that the appellant's failure to appear was not willful, and it was a one-timeoccurrence. The appellant also established a potentially meritorious defense toBrenda-Marie Gastaldi's family offense petition and a potentially meritorious cause ofaction with respect to his cross petition (see Matter of Muhammadu v Barcia, 100 AD3d 904, 905[2012]; Matter of Dos Santos v Dos Santos, 76 AD3d at 1015; Matter of Doria v Doria, 24AD3d 760 [2005]). Dillon, J.P., Hinds-Radix, Maltese and Barros, JJ., concur.