Matter of Xiao-Lan Ma v. Washington

Apr 15, 2015
2014-07019
Versions:127 A.D.3d 982
4 N.Y.S.3d 916

In the Matter of Xiao-Lan Ma, Respondent, v ANTHONY VALANCE WASHINGTON, Appellant. [4 NYS3d 914]—Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated October 8, 2013. The order, after a default and after an inquest, granted the mother‘s petition for custody of the subject child, directed that the father‘s visitation with the child be supervised, and granted the mother‘s application for an award of an attorney‘s fee.

Ordered that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the father‘s request for an adjournment (see CPLR 5511; Katz v Katz, 68 AD2d 536 [1979]); and it is further,

Ordered that the order is affirmed insofar as reviewed, with costs.

Where, as here, an order is made upon the appellant‘s default, review is limited to “matters which were the subject of contest below” (James v Powell, 19 NY2d 249, 256 n 3 [1967]; see Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 908 [2013]; Brown v Data Communications, 236 AD2d 499 [1997]). Accordingly, in this case, review is limited to the denial of the father‘s request for an adjournment at the conclusion of the first day of the custody hearing (see Matter of Angie N.W. [Melvin A.W.], 107 AD3d at 908; Matter of Tripp, 101 AD3d 1137, 1138 [2012]; Matter of Paulino v Camacho, 36 AD3d 821 [2007]).

Whether to grant a party‘s request for an adjournment is a matter resting within the sound discretion of the Family Court (see Matter of Steven B., 6 NY3d 888, 889 [2006]; Matter of Winfield v Gammons, 105 AD3d 753 [2013]). The court must consider all relevant factors in making the determination (see Matter of Tripp, 101 AD3d at 1138; Matter of Sicurella v Embro, 31 AD3d 651 [2006]). Here, in light of, inter alia, the father‘s history of missing court dates based on his unsubstantiated claims of impoverishment, the length of the pendency of the proceeding, and the merits of the proceeding, the Family Court providently exercised its discretion in denying his request for an adjournment (see Matter of Tripp, 101 AD3d at 1138-1139; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d 657 [2010]; Matter of Sanaia L. [Corey W.], 75 AD3d 554 [2010]; Matter of Dakota B. [Brigitta B.], 73 AD3d 763 [2010]; Matter of Amber Megan D., 54 AD3d 338 [2008]). Mastro, J.P., Leventhal, Cohen and Maltese, JJ., concur.

In the Matter of Xiao-Lan Ma, Respondent, v ANTHONY VALANCE WASHINGTON, Appellant. [4 NYS3d 916]—Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated June 19, 2014. The order denied the father‘s motion pursuant to CPLR 5015 (a) (1) and (4) to vacate a prior order of the same court dated October 8, 2013, which, inter alia, granted the mother‘s petition for custody of the subject child, directed that the father‘s visitation with the child be supervised, and granted the mother‘s application for an award of an attorney‘s fee.

Ordered that the order is affirmed, with costs.

The Family Court properly denied, without a hearing, that branch of the father‘s motion which was pursuant to CPLR 5015 (a) (4) to vacate a prior order of the same court dated October 8, 2013, which, inter alia, granted the mother‘s petition for custody of the subject child, for lack of personal jurisdiction. The affidavits of service of the mother‘s process server constituted prima facie evidence of proper service of the custody petition on the father pursuant to CPLR 308 (4) and 313, which the father failed to rebut (see Mortgage Elec. Registration Sys., Inc. v Losco, 125 AD3d 733 [2015]; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813 [2013]).

The Family Court also providently exercised its discretion in denying that branch of the father‘s motion which was to vacate the prior order pursuant to CPLR 5015 (a) (1). The father had to establish a reasonable excuse for his default in appearing at the custody hearing and a potentially meritorious defense to the custody proceeding (see Matter of Weintrob v Weintrob, 87 AD3d 749 [2011]; Matter of Proctor-Shields v Shields, 74 AD3d 1347 [2010]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Family Court (see Young Chen v Ruihua Li, 67 AD3d 905, 906 [2009]). 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. Mastro, J.P., Leventhal, Cohen and Maltese, JJ., concur.