IN RE: Kendall DANNER-NEPAGE

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

IN RE: Kendall DANNER-NEPAGE, Petitioner-Appellant, v. Chad NEPAGE, Respondent-Respondent.

Decided: March 27, 2009

PRESENT:  HURLBUTT, J.P., MARTOCHE, CARNI, GREEN, AND PINE, JJ. Paloma A. Capanna, Penfield, for Petitioner-Appellant. Theodore W. Stenuf, Law Guardian, Minoa, for Emily D.

“In view of the unintentional nature of the default, the reasonable nature of the excuse, ․ and the judicial preference for resolving cases on their merits,” we conclude that Family Court abused its discretion in denying petitioner's motion to vacate the September 2007 default order (Cavagnaro v. Frontier Cent. School Dist., 17 A.D.3d 1099, 794 N.Y.S.2d 252;  see Petrosino v. Petrosino, 24 A.D.3d 1210, 1212, 805 N.Y.S.2d 894).   Petitioner established a reasonable excuse for her failure to appear as well as a meritorious defense to respondent's petition for custody of the parties' minor daughter (see Matter of Bey v. Perez, 39 A.D.3d 631, 833 N.Y.S.2d 613;  see generally CPLR 5015[a][1] ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the order entered September 24, 2007 is vacated, and the matter is remitted to Family Court, Oswego County, for a hearing on the petitions.

MEMORANDUM: