SAUL W. HOLLAND, Respondent, v. CITY OF POUGHKEEPSIE et al., Appellants, et al., Defendants.

N/A

OUTCOME:

Matter of McKinney v Jones

N/A

OUTCOME: Won

Arza Feldman, Uniondale, NY, for appellant. Petito & Petito, LLP, Poughkeepsie, NY (Joseph Petito of counsel), for respondent. Appeal by Nickiba Jones from an order of the Family Court, Dutchess Coun ... ty (Tracy C. MacKenzie, J.), dated January 28, 2016. The order denied her motion to vacate an order of protection that was entered against her after an inquest upon her failure to appear at a scheduled court date. Ordered that the order is affirmed, without costs or disbursements. In this family offense proceeding, the Family Court issued an order of protection against the appellant and in favor of the petitioner and the petitioner's children upon the appellant's failure to appear for a scheduled court date. The appellant moved to vacate the order of protection, and the Family Court denied her motion. A respondent seeking to vacate an order of protection entered upon his or her failure to appear on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition. The determination of whether to relieve a party of an order entered upon that party's default is within the sound discretion of the Family Court (see CPLR 5015 [a] [1]; Matter of Williams v Williams, 148 AD3d 917 [2017]; Matter of Jade Yun Hon v Tin Yat Chin, 126 AD3d 904 [2015]; Matter of Idieru v Jeanpierre, 122 AD3d 852 [2014]; Matter of Nunez v Lopez, 103 AD3d 803 [2013]). Here, the Family Court providently exercised its discretion in denying the appellant's motion to vacate the order of protection entered upon her default, as the appellant failed to demonstrate a reasonable excuse for her default, and, in any event, failed to demonstrate a potentially meritorious defense to the petition. Eng, P.J., Leventhal, Sgroi and Maltese, JJ., concur.

Matter of Serwatka v Serwatka

N/A

OUTCOME: Won

Matter of Serwatka v Serwatka 2017 NY Slip Op 01367 Decided on February 22, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. ... This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RANDALL T. ENG, P.J. JOHN M. LEVENTHAL JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. 2016-05450 (Docket No. O-1913-15) [*1]In the Matter of Bethanne Serwatka, respondent, v Joseph Serwatka, appellant. Salvatore C. Adamo, New York, NY, for appellant. Petito & Petito, LLP, Poughkeepsie, NY (Joseph Petito of counsel), for respondent. DECISION & ORDER Appeal by the father from an order of the Family Court, Dutchess County (Joan S. Posner, J.), dated March 28, 2016. The order denied his motion to vacate (1) an order of fact-finding and disposition of that court dated September 25, 2015, which granted the petitioner's family offense petition against him, and (2) a related final order of protection against him, also dated September 25, 2015, both of which were entered after inquest upon the father's default in appearing at the fact-finding and dispositional hearings. ORDERED that the order dated March 28, 2016, is affirmed, without costs and disbursements. A party seeking to vacate an order entered on default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Matter of Mongitore v Linz, 95 AD3d 1130; Matter of Territo v Keane, 55 AD3d 744, 745). "The question of whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court" (Matter of Lee v Morgan, 67 AD3d 681, 682 [internal quotation marks omitted]; see Matter of Atkin v Atkin, 55 AD3d 905; Matter of Coates v Lee, 32 AD3d 539). Here, the father failed to demonstrate a reasonable excuse for his default in appearing at the fact-finding and dispositional hearings (see Matter of Dominique Beyonce R. [Maria Isabel R.], 82 AD3d 984, 985; Matter of Nicholas S., 46 AD3d 830, 831). Since the father failed to demonstrate a reasonable excuse for his default, we need not determine whether he had a potentially meritorious defense (see Matter of Proctor-Shields v Shields, 74 AD3d 1347, 1348; Diaz v Diaz, 71 AD3d 947, 948). The father's remaining contention is not properly before this Court (see Murray v City of New York, 43 AD3d 429, 430; McKiernan v McKiernan, 277 AD2d 433). ENG, P.J., LEVENTHAL, COHEN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! News Find a Lawyer Lawyers - Get Listed Now! Get a free directory profile listing Sponsored Listings Daniel Patrick PREMIUM (914) 682-0707 Tarrytown, NY Municipal Law Website Email Profile Joel Mark Greenberg PREMIUM (212) 734-0128 New York, NY Health Care Law Website Email Profile Michael Varble PREMIUM (845) 363-6500 Poughkeepsie, NY Personal Injury, Family Law, Divorce, Criminal Law, DUI & DWI, Domestic Violence, Medical Malpractice, White Collar Crime, Civil Rights, Products Liability, Nursing Home Abuse & Neglect, Animal & Dog Law Website Email Profile Zev Goldstein PREMIUM (845) 356-7770 Monsey, NY Traffic Tickets, DUI & DWI, Criminal Law, Landlord Tenant, Real Estate Law Website Email Profile Adam H. Rosenblum

Matter of Lemon v Faison

N/A

OUTCOME: Won

Ordered that the order entered June 29, 2016, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the father's motion to vacate the two orders and the order of ... protection, all dated March 1, 2016, is granted, the father's visitation petition is reinstated, and the matters are remitted to the Family Court, Dutchess County, for a hearing and new determinations thereafter of the father's visitation petition and the mother's custody petition, before a different Judge.

Matter of Jennifer J.H. v Artrieo J.R.

N/A

OUTCOME: Won

DECISION & ORDER Appeal by the mother from an order of the Family Court, Dutchess County (Denise M. Watson, J.), entered January 8, 2016. The order, without a hearing, dismissed the mother's petition ... to modify a prior order of that court so as to award her unsupervised visitation with the subject child. ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for a hearing to determine the best interests of the child and for a new determination on the mother's petition to modify the prior visitation order. The petitioner is the biological mother of the subject child, who was born in 2005, and the respondent is the stepfather of the child, who was appointed the child's legal guardian in 2010. The mother left the child with the stepfather and was out of their lives for several years. In 2013, the mother petitioned to have visitation with the child in a therapeutic setting and the Family Court, on consent of the parties, directed therapeutic visitation in an order dated November 7, 2013. Several visits occurred, and then stopped during the summer of 2015. The mother then filed a new petition alleging that visitation had ceased and seeking to modify the prior order so as to award her unsupervised visitation with the child. Without holding a hearing, the court dismissed the petition, relying on the recommendation of the child's therapist, who indicated that there should be no visitation between the mother and the child at that time. The mother appeals. We reverse. A hearing was necessary to determine whether the totality of the circumstances warranted a modification of the visitation order and whether such a change is in the best interests of the child (see Matter of Athena H.M. v Samuel M., 143 AD3d 561; see also S.L. v J.R., 27 NY3d 558, 564). The child's wishes, to be discerned from an interview, should be considered in making the determination (see Matter of Athena H.M. v Samuel M., 143 AD3d 561). Moreover, it was improper for the Family Court to rely exclusively on the therapist's recommendation in making the visitation determination (see Matter of Grisanti v Grisanti, 4 AD3d 471, 474; Johnson v Johnson, 303 AD2d 641). HALL, J.P., AUSTIN, SGROI and CONNOLLY, JJ., concur.