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In re Anastashia S.

96 A.D.3d 1442 Court N.Y. App. Div. Decision date 2012-06-08 English

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p. 1442
In the Matter of Anastashia S., an Infant. Chautauqua County Department of Social Services, Respondent; Tonya R., Appellant.
[945 NYS2d 893]

Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered May 10, 2011 in a proceeding pursuant to Social Services Law § 384-b. The order denied the motion of respondent to vacate a default judgment.

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

Memorandum: Contrary to the contention of respondent mother, Family Court did not abuse its discretion in denying her motion to vacate a judgment entered upon her default in this permanent neglect proceeding. The mother’s contention that she had a reasonable excuse for her failure to appear based upon her lack of knowledge of the fact-finding hearing and upon her incarceration at the time of that hearing is not preserved for our review, inasmuch as she did not seek vacatur on those

p. 1443
grounds (see Matter of Derrick T., 261 AD2d 108 , 109 [1999]). In any event, we conclude that the mother failed to establish a reasonable excuse for her failure to appear (see Matter of Raymond Anthony A., 192 AD2d 529 [1993], lv dismissed 82 NY2d 706 [1993]; cf. Matter of Danner-Nepage v Nepage, 60 AD3d 1495 , 1495-1496 [2009]). In addition, the mother’s unsubstantiated and conclusory assertion of partial compliance with the prior dispositional order is insufficient to establish a meritorious defense to the petition (see Matter of Gloria Marie S., 55 AD3d 320 , 321 [2008], lv dismissed 11 NY3d 909 [2009]; see also Matter of Kenneth L. [Michelle B.], 92 AD3d 1245 , 1247 [2012]; Matter of Alexis C.R. [Victor C.], 71 AD3d 1511 [2010], lv dismissed 14 NY3d 922 [2010]). Present — Smith, J.P., Fahey, Peradotto, Sconiers and Martoche, JJ.

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