IN RE: Samuel V. S.

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

IN RE: Samuel V. S., A Child Under the Age of Eighteen Years, etc., _____ Shamea L., etc., Respondent–Appellant.  Administration for Children Services, Petitioner–Respondent,


Decided: November 17, 2011

Mazzarelli, J.P., Friedman, Catterson, Moskowitz, Abdus–Salaam, JJ. John J. Marafino, Mount Vernon, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondent.

Cozen O'Connor, New York (Kenneth G. Roberts of counsel), attorney for the child.


Order, Family Court, New York County (Jody Adams, J.), entered on or about November 5, 2009, which denied respondent mother's motion to vacate an order, same court and judge, entered December 5, 2008, which, upon her default in appearing at the fact-finding hearing, found that she had neglected the subject child, unanimously affirmed, without costs.

A party seeking to vacate an order must establish that there was a reasonable excuse for the default and a meritorious defense to the petition (see CPLR 5015[a][1];  Matter of Atkin v. Atkin, 55 AD3d 905 [2008] ).   Without reaching the question of whether or not the mother had a reasonable excuse for default, we find that the court properly denied the mother's motion because she failed to set forth a meritorious defense.   The record demonstrates that the mother suffers from either borderline personality disorder or NOS personality disorder, that she committed multiple acts of domestic violence upon the father in the child's presence and threatened to kill the child, thereby impairing or creating an imminent danger of impairing the child's physical, emotional or mental well-being (see Matter of Davion A., 68 AD3d 406 [2009] ).   The mother's submission, consisting solely of an affirmation from her counsel, was insufficient because it contained conclusory assertions and was not from an individual who had personal knowledge of the facts.   No basis exists for disturbing the court's credibility determinations, which are entitled to great deference (see Matter of Daquan D., 18 AD3d 363, 364 [2005] ).   We have considered the appellant's additional arguments and find them unpersuasive or unpreserved.





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