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Default Judgment against Mother for Failure to Appear Reversed

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

“We must remain vigilant that the ultimate issue here is what is in [the children’s] best interest[s], not whether [the mother] should be punished for her actions”….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court “is bound to assess numerous  factors,” constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

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