Supreme Court, Appellate Division, Second Department, New York.
IN RE: Ursula–Pearl Uchenna NWABUEZE, respondent, v. Livinus Obinna OKAFOR, appellant.
Decided: November 14, 2018
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
Da'Tekena Barango–Tariah, Brooklyn, NY, for appellant. Ursula–Pearl Uchenna Nwabueze, Brooklyn, NY, respondent pro se.
DECISION & ORDER
ORDERED that the order dated July 20, 2017, is affirmed, with costs.
The mother filed a petition for sole custody of the parties' three children on or about December 18, 2015. The father was served with the petition on December 31, 2015, in Yorkton, Saskatchewan, Canada. Upon his failure to appear at a hearing, the Family Court issued an order on January 12, 2016, awarding the mother sole legal and physical custody of the children. Thereafter, in June 2017, the father moved to vacate the order entered upon his default. The court denied the father's motion, and the father appeals.
We agree with the Family Court's determination to deny, without a hearing, that branch of the father's motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate the order dated January 12, 2016, for lack of personal jurisdiction. The affidavit of service of the mother's process server constituted prima facie evidence of proper service of the custody petition on the father, and the father failed to rebut that showing by submitting a sworn denial of receipt of service containing any specific facts to refute the statements in the process server's affidavit (see Matter of Annata M. [Clinton B.], 140 A.D.3d 959, 960–961, 35 N.Y.S.3d 148; Matter of Xiao–Lan Ma v. Washington, 127 A.D.3d 982, 4 N.Y.S.3d 914).
The Family Court providently exercised its discretion in denying that branch of the father's motion which was pursuant to CPLR 5015(a)(1) to vacate the order dated January 12, 2016. The father was required to establish a reasonable excuse for his default in appearing at the hearing on the custody petition and a potentially meritorious defense to the custody proceeding (see Matter of Strickland v. Lewis, 110 A.D.3d 907, 908, 972 N.Y.S.2d 920; Matter of Johnson v. Lee, 89 A.D.3d 733, 931 N.Y.S.2d 901; Matter of Petulla v. Petulla, 85 A.D.3d 925, 926, 925 N.Y.S.2d 338). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Family Court (see Matter of Xiao–Lan Ma v. Washington, 127 A.D.3d at 983, 4 N.Y.S.3d 914). The record supports the court's determination that the father failed to establish either a reasonable excuse for his default or a potentially meritorious defense (see id.; Matter of Strickland v. Lewis, 110 A.D.3d at 908, 972 N.Y.S.2d 920).
SCHEINKMAN, P.J., BALKIN, HINDS–RADIX and LASALLE, JJ., concur.
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