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

1421
CAF 14-00811
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


IN THE MATTER OF MEGAN M. STRUMPF,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STEVEN A. AVERY, JR., RESPONDENT-APPELLANT.


ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT.

DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR PETITIONER-RESPONDENT.

DAVID H. FRECH, ATTORNEY FOR THE CHILDREN, BUFFALO.


     Appeal from an order of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), entered March 19, 2014 in a proceeding pursuant to
Family Court Act article 6. The order denied the motion of respondent
to vacate a default order.

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

     Memorandum: Respondent father appeals from an order denying his
motion to vacate an order, entered upon his default, that awarded
petitioner mother sole custody of the parties’ children and limited
the father’s contact with the children to agency-supervised
visitation. We conclude that Supreme Court properly denied the
father’s motion.

     “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 Roshia v Thiel, 110 AD3d 1490, 1491,
lv dismissed in part and denied in part 22 NY3d 1037 [internal
quotation marks omitted]; see Matter of Cummings v Rosoff, 101 AD3d
713, 714). Here, the father established neither.

     Although the father contended that he did not appear in court
because he never received notice of the proceedings, text messages
that he sent to the mother establish that his failure to appear in
court “was willful and intentional” (Matter of Silverman v Reid, 259
AD2d 550, 551; see Matter of Burns v Carriere-Knapp, 278 AD2d 542,
544). Moreover, the father’s claim that he never received notice of
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                                                         CAF 14-00811

the court date is belied by his attorney’s statements that he was
“noticed” and the court’s statement that the notice it mailed to the
father was not returned (see Matter of Colin D. v Latoya A., 132 AD3d
438, 438). Even assuming, arguendo, that the father established a
reasonable excuse for his default based on the fact that he had
changed residences several times and thus may not have received notice
(cf. Dudley v Steese, 228 AD2d 931, 931-932), we 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’ ” (Matter of Susan UU. v Scott VV., 119 AD3d 1117, 1118), but
he failed to do so. His bare assertion that he had a meritorious
defense without stating the facts or legal arguments to establish that
defense is insufficient (see Matter of Atkin v Atkin, 55 AD3d 905,
905).

     Finally, the father contends that he was denied due process by
the withdrawal of his attorney without appropriate notice. That
contention, which is raised for the first time on appeal, is not
preserved for our review (see Matter of Rodney W. v Josephine F., 126
AD3d 605, 606, lv dismissed 25 NY3d 1187; Matter of Kimberly Carolyn
J., 37 AD3d 174, 175, lv dismissed 8 NY3d 968).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
