Matter of Stephanie F. (Francy Javier A.)

Matter of Stephanie F. (Francy Javier A.) 2015 NY Slip Op 07932 Decided on October 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2015
Mazzarelli, J.P., Acosta, Saxe, Richter, JJ.
15994

[*1] In re Stephanie F., and Another, Children Under Eighteen Years of Age, etc.,

and

Francy Javier A., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

The Bronx Defenders, Bronx (Saul Zipkin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.

Order, Family Court, Bronx County (Robert Hettleman, J.), entered on or about November 20, 2014, which denied respondent's motion to vacate an order of fact-finding and disposition entered upon his default, unanimously affirmed, without costs.

Even if the Family Court should have considered respondent's motion under Family Court Act § 1042, as opposed to CPLR 5015(a)(1), it properly denied the motion because respondent failed to present a meritorious defense to the abuse petition (see Family Ct Act § 1042; see also Matter of Rodney W. v Josephine F., 126 AD3d 605, 606 [1st Dept 2015], lv dismissed 25 NY3d 1187 [2015]). The findings of abuse and derivative abuse were supported by, among other things, the teenage child's detailed testimony of multiple instances of sexual abuse, which was corroborated by medical records showing that she gave consistent reports to a social worker and that she suffered symptoms of trauma. In support of the motion to vacate, respondent submitted a conclusory affidavit denying the allegations of abuse and vaguely asserting that he has information that could be used during cross-examination to discredit the child's testimony. This is insufficient to establish a meritorious defense (see Matter of Cain Keel L. [Derzerina L.], 78 AD3d 541, 542 [1st Dept 2010], lv dismissed 16 NY3d 818 [2011]; Matter of Gloria Marie S., 55 AD3d 320, 321 [1st Dept 2008], lv dismissed 11 NY3d 909 [2009]).

Although the absence of a meritorious defense is alone sufficient to deny the motion to vacate, the record also supports a finding that respondent willfully failed to appear at the hearing (see Family Ct Act § 1042). His claim that he failed to

appear because his attorney never informed him of the hearing

date is not credible and is inconsistent with the record.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 29, 2015

CLERK