IN RE: QADEERA TONEZIA D. (Anonymous). (2008)

In related proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the mother appeals from an order of the Family Court, Queens County (Salinitro, J.), dated September 17, 2007, which denied her motion to vacate her default in appearing at the fact-finding and dispositional hearing.

ORDERED that the order is reversed, on the law, without costs or disbursements, the mother's motion to vacate her default is granted, the four orders of disposition dated September 18, 2007, respectively, terminating the mother's parental rights as to each child, are vacated, and the petitions are dismissed.

 Under CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of jurisdiction (see Citibank v. Keller, 133 A.D.2d 63, 64-65, 518 N.Y.S.2d 409).  “Although a party moving to vacate a default must normally demonstrate a reasonable excuse and a meritorious defense (see CPLR 5015) ․ the movant is relieved of that obligation when lack of personal jurisdiction is asserted as the ground for vacatur” (Harkless v. Reid, 23 A.D.3d 622, 622-623, 806 N.Y.S.2d 214;  Steele v. Hempstead Pub Taxi, 305 A.D.2d 401, 402, 760 N.Y.S.2d 188).

 Here, it is undisputed that there was no affidavit of service with respect to service upon the mother.   Moreover, the mother did not appear in court and participate in the merits of the proceeding.   Therefore, she did not waive her jurisdictional objection (see Pendergrast v. St. Mary's Hosp., 156 A.D.2d 436, 548 N.Y.S.2d 711;  cf. Matter of Roslyn B. v. Alfred G., 222 A.D.2d 581, 582, 635 N.Y.S.2d 283;  Matter of Rosso v. Rosso, 171 A.D.2d 797, 567 N.Y.S.2d 513).   Accordingly, the Family Court should have vacated the mother's default on jurisdictional grounds (see Citibank v. Keller, 133 A.D.2d at 64-65, 518 N.Y.S.2d 409).

In light of this determination, the mother's remaining contentions need not be reached.