Claude T., Respondent-Appellant. v. << (2004)

Petitioner commenced this proceeding seeking an adjudication that Precyse T. had been neglected by her parents.   Claude T. (respondent), the child's father, and his attorney both failed to appear at the fact-finding hearing, and Family Court thereafter issued an order adjudging the child to be neglected by respondent.   Respondent appeals from an order denying his motion to vacate the order of neglect entered on his default and to restore the matter to the calendar for further proceedings on the petition with respect to him.

 We conclude that the court abused its discretion in denying respondent's motion inasmuch as respondent made the requisite showing of “good cause” to warrant vacatur of the prior order pursuant to Family Ct. Act § 1061 (see Matter of Karla V., 278 A.D.2d 159, 163, 717 N.Y.S.2d 598;  Matter of Commissioner of Social Servs. v. Amine B., 223 A.D.2d 703, 704-705, 637 N.Y.S.2d 182).   In any event, we conclude that respondent also made the requisite showing of a reasonable excuse for the default and a meritorious defense to the petition to warrant vacatur of the order pursuant to CPLR 5015(a)(1) (see Family Ct. Act § 165[a];  see generally Matter of Waite v. Whalen, 215 A.D.2d 922, 923-924, 626 N.Y.S.2d 867).   Finally, to the extent that Family Ct. Act § 1042 may apply to this case, we conclude that respondent made the requisite showing that his personal default in appearing was not willful (see Matter of Commissioner of Social Servs. of City of N.Y. v. Rafael B., 186 A.D.2d 253, 254, 588 N.Y.S.2d 579).   We note that “[t]he general rule with respect to opening defaults in civil actions is not to be applied as rigorously in actions or proceedings involving the custody, care and support of children” (Matter of Patricia J. v. Lionel S., 203 A.D.2d 979, 979, 611 N.Y.S.2d 374;  see Matter of Commissioner of Social Servs. of County of Los Angeles v. Uon, 286 A.D.2d 949, 731 N.Y.S.2d 122;  Matter of Erie County Dept. of Social Servs. v. Greg G., 273 A.D.2d 919, 709 N.Y.S.2d 315).   Our preference is for “the resolution of [such matters] on their merits” (Mann v. Mann, 149 A.D.2d 669, 671, 540 N.Y.S.2d 309;  see Patricia J., 203 A.D.2d at 979, 611 N.Y.S.2d 374).   We therefore reverse the order, grant the motion, vacate the order of neglect, and remit the matter to Family Court for further proceedings on the petition with respect to respondent.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the order entered September 17, 2002 is vacated, and the matter is remitted to Family Court, Monroe County, for further proceedings.

MEMORANDUM: