Daniel M., Sr., Respondent-Appellant.  (Appeal No. 1.) v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of ZABRINA M. Erie County Department of Social Services, Petitioner-Respondent; Daniel M., Sr., Respondent-Appellant.  (Appeal No. 1.)

Decided: April 29, 2005

PRESENT:  GREEN, J.P., HURLBUTT, MARTOCHE, LAWTON, AND HAYES, JJ. Alan Birnholz, E. Amherst, for Respondent-Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner-Respondent. David C. Schopp, Law Guardian, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Zabrina M.

 Respondent contends that Family Court erred in denying his motion to vacate a default finding of permanent neglect made after his failure to appear at the continuation of the fact-finding hearing.   To vacate a default in a proceeding pursuant to Social Services Law § 384-b, a party must demonstrate both a reasonable excuse for the failure to appear and a meritorious defense to the proceeding (see Matter of Kindra B., 296 A.D.2d 456, 458, 745 N.Y.S.2d 74;  Matter of Vanessa M., 263 A.D.2d 542, 543-544, 693 N.Y.S.2d 221;  Matter of Jones, 128 A.D.2d 403, 404, 512 N.Y.S.2d 689).   Here, respondent was present in the court when the next court date was announced, and thus his contention that he did not know of that court date is not a reasonable excuse (see Matter of Shakyra M., 270 A.D.2d 941, 705 N.Y.S.2d 549, lv. dismissed 95 N.Y.2d 825, 712 N.Y.S.2d 450, 734 N.E.2d 762).   Moreover, respondent's conclusory assertion that petitioner failed to exercise diligent efforts is insufficient to raise a meritorious defense (see Matter of Shirley C., 145 A.D.2d 631, 632, 536 N.Y.S.2d 156;  Jones, 128 A.D.2d at 404, 512 N.Y.S.2d 689).   In any event, the testimony of petitioner's witness, as well as the affidavits of two other witnesses submitted in opposition to the motion, establish that petitioner made repeated referrals for respondent to various programs and belies his contention that petitioner failed to make diligent efforts (see Jones, 128 A.D.2d at 404-405).   Because respondent failed to establish a reasonable excuse for his failure to appear or a meritorious defense, the court did not abuse its discretion in denying his motion to vacate the default (see Shakyra M., 270 A.D.2d 941, 705 N.Y.S.2d 549;  see also Matter of Cindy Sarah R., 13 A.D.3d 379, 785 N.Y.S.2d 348;  Matter of Aaron R., 282 A.D.2d 464, 722 N.Y.S.2d 422, lv. dismissed 96 N.Y.2d 854, 729 N.Y.S.2d 669, 754 N.E.2d 772).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: