        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1123
CAF 15-01520
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF TERIZA SHEHATOU,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

EMAD LOUKA, RESPONDENT-APPELLANT.


DIBBLE & MILLER, P.C., ROCHESTER (CRAIG D. CHARTIER OF COUNSEL), FOR
RESPONDENT-APPELLANT.

ALDERMAN AND ALDERMAN, SYRACUSE (EDWARD B. ALDERMAN OF COUNSEL), FOR
PETITIONER-RESPONDENT.

SUSAN B. MARRIS, ATTORNEY FOR THE CHILDREN, MANLIUS.


     Appeal from an order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered June 26, 2015 in a proceeding
pursuant to Family Court Act article 4. The order, among other
things, denied respondent’s application to, inter alia, vacate an
order entered upon his default.

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

     Memorandum: Respondent father appeals from an order that, inter
alia, denied his application seeking to vacate an order entered upon
his default in which Family Court determined that he willfully
violated a child support order. The determination whether to vacate
an order entered upon a default is left to the sound discretion of the
court (see Matter of Troy D.B. v Jefferson County Dept. of Social
Servs., 42 AD3d 964, 965), and we conclude that the court did not
abuse its discretion here. “Pursuant to CPLR 5015 (a) (1), a court
may vacate a judgment or order entered upon default if it determines
that there is a reasonable excuse for the default and a meritorious
defense” (id.). “Although default orders are disfavored in cases
involving the custody or support of children, and thus the rules with
respect to vacating default judgments are not to be applied as
rigorously in those cases . . . , that policy does not relieve the
defaulting party of the burden of establishing a reasonable excuse for
the default or a meritorious defense” (Matter of Strumpf v Avery, 134
AD3d 1465, 1465-1466 [internal quotation marks omitted]). Even
assuming, arguendo, that the father established a reasonable excuse
for his failure to appear for the trial based upon allegedly confusing
correspondence from petitioner mother’s attorney with respect to
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                                                         CAF 15-01520

whether the mother had withdrawn her petition, we nevertheless
conclude that the father failed to establish a meritorious defense.
“In order to support his claim of a meritorious defense, the father
was required to set forth sufficient facts [or legal arguments] to
demonstrate, on a prima facie basis, that a defense existed . . . ,
but he failed to do so” (id. at 1466 [internal quotation marks
omitted]). The father repeated arguments in his affidavit that had
been unsuccessful in prior support proceedings, i.e., that he received
Social Security benefits and that he was unable to work. We conclude,
however, that he failed to establish his inability to work, and his
conclusory assertions were not sufficient to establish a meritorious
defense (see Matter of Commissioner of Social Servs. v Turner, 99 AD3d
1244, 1244-1245).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
