Papers Numbered

Upon the foregoing papers and for the reasons that follow, the motion by Petitioner Kelly N., for a vacatur of default Final Orders of Protections issued against her, pursuant to CPLR 5015(a)(1), is denied.

The following facts are essentially undisputed and have been gleaned from the inquest held herein. Kelly N. is the sister-in-law of Respondent Maria N., and daughter-in-law of Petitioner Eileen C., who is 80 years-old and partially wheelchair bound. Since at least 1981, Mrs. C. has owned her family Residence located in Brooklyn, NY, and has three adult living children: Maria, who resides with her; Dawn C., residing in Long Island; and Sammy N., currently incarcerated for attempted murder. Mr. N. met and married Kelly N. while incarcerated; he served approximately 27 years, and returned home to the Residence with Mrs. C. and Maria upon his release from prison.

Eventually, Kelly N. and her daughter from a previous relationship, Kassidy, were permitted to live at Mrs. C.'s Residence as temporary guests of Mr. N. However, Mr. N. subsequently violated his parole by failing a routine drug test, and was recently returned to jail. The presence of Kelly N. and Kassidy at the home without Mr. N., became a source of friction for the family. It is alleged that the situation became so untenable that on or around March 26, 2016, Mrs. C. and Maria N. asked Kelly to move out of the Residence; she apparently refused.

By Petition dated April 14, 2016, Kelly N. commenced the instant Family Offense proceeding against Maria N. under Docket No. O-09466-16, alleging that Maria slapped her daughter, Kassidy, pushed her onto the sidewalk and threw her and Kelly's belongings into garbage bags and onto the street on April 5, 2016. The Petition was not brought on behalf of Kassidy, and the only allegations against Maria N. involving Kelly herself are that she intimidated, "provokes" and "screams" at her. Tellingly, Kelly N. sworn in her Petition that she did not know Maria N.'s address and that Kassidy did not live at the residence with them. Despite these inconsistencies, the Kings County Family Court granted a Temporary Order of Protection (Ross, JHO), dated April 14, 2016, ordering Maria N. to stay away from Kelly N.'s Residence and wherever she may be, and to refrain from harassing, stalking, threatening or committing any family offenses against her. Because purportedly there was no exclusion, the matter was adjourned before the Court for July 14, 2016, at the expiration of that Temporary Order of Protection.

However, on May 13, 2016, Maria N. and Mrs. C. commenced separate Family Offense Proceedings against Kelly N., alleging that Kelly misrepresented to the Court that Maria did not reside at the Premises when, in fact, she has resided there since her birth and has been the sole caretaker of her elderly mother. In seeking their own protective order, they alleged that it was Kelly N. the one who has "constantly been threatening and verbally abusing" Maria N. and Ms. C., corroborating the incident on March 26, 2016, when Kelly threatened to harm them because they had requested her to move out of the Residence. According to Maria N., Kelly N. suffers from a bipolar disorder, uses illegal drugs, and has threatened to "make her life a big mess," punch and kill Maria, who "will never see it coming." Mrs. C. and Maria N. had both previously filed criminal complaints for harassment against Kelly N. with the New York Police Department ("NYPD") for an incident which happened on or about March 30, 2016, after telling her to move [*2]out.

The Kings County Family Court (Mulroy, J.), by separate Temporary Orders of Protection dated May 13, 2016, granted their Petitions and ordered Kelly N. to refrain from harassment, coercion, disorderly conduct, forcible touching or committing any criminal offense against Maria N. and Mrs. C. On the return date of May 23, 2016 at 9:30 a.m., Kelly N. failed to appear before the Court to answer the Petitions against her, despite being personally served by the NYPD with the three summons along with a Petition for a Modification of her prior Temporary Order of Protection, and the two aforementioned Family Offense Petitions against her. Although Maria N., Mrs. C. and their counsel arrived on time to the courthouse, the undersigned patiently waited all morning from the scheduled time of 9:30 a.m. until close to 1:00 p.m. for Kelly N.'s appearance, without receiving any telephonic call, request for an adjournment or message as to any delay.

Upon Counsel's second oral application to enter a default against Kelly N., the Family Court granted the application, given her alleged misrepresentation of Maria N.'s residence and the potentially explosive circumstances existing at the Premises, as depicted by the Petitions and Counsel. On May 23, 2016, the Court then proceeded to inquest, heard testimony and received documentary evidence from Maria N., Mrs. C. and Ms. C., detailing how Kelly N. constituted a disruptive force in the home, was constantly under the influence of cocaine and/or heroin, and had repeatedly threatened Mrs. C. and Maria verbally and with bodily harm, as described by them and witnessed by Ms. C.

In support of her Petition, Maria N., who is a former NYC Police Officer retired after over 20 years of service, introduced relevant evidence as to her continuous residence at the Premises and to the fact that she was on vacation in Canada with her girlfriend on April 5, 2016, when she allegedly committed the family offenses against Kassidy and Kelly N.. Maria N. provided receipts for plane tickets, purchases at Canada's Burlington Coat Factory and the Bed & Breakfast where they stayed in Canada. They further testified that Kassidy had left the residence sometime prior to the alleged incidents to live at a friend's house, as stated in Kelly N.'s Petition.

Of significance and resonance to this Court was Maria N.'s and Ms. C.'s pained and credible testimony that they were reluctant to commence a Family Offense Proceeding against Kelly N. earlier because they wanted to protect the family from the hurt and embarrassment that such proceedings could bring. At the conclusion of the inquest, the Family Court (Vargas, J.) found them credible and vacated Kelly N.'s Temporary Order of Protection and issued two Final Orders of Protection, on default, dated May 23, 2016, in favor of Maria N. and Mrs. C. excluding Kelly N. from the Residence, ordering her to stay away from them wherever they may be, and ordering her to refrain from harassing, coercing, threatening, forcibly touching or committing any criminal offenses against them. The Court adjourned Kelly N.'s own Family Offense Petition to June 2016.

Now, by Order to Show Cause dated June 24, 2016, Kelly N. moves for an order by this Court excusing her default and vacating the Final Orders of Protection against her pursuant to CPLR 5015(a)(1), claiming that she has a reasonable excuse for the default in that she is "partially paralyzed and fully disabled" and was unable to timely secure a ride from the Residence to the courthouse, and had to take "several buses" on May 23, 2016. As to a meritorious defense, Kelly N. only affirms in her Affidavit that she did not "commit any family offense on Maria N. or [Mrs.] C." In opposition, Maria N. and Mrs. C. argue that Kelly N. has [*3]failed to meet her burden to excuse the default as, inter alia, she inexcusably failed to appear on the return date and utterly lacks a meritorious defense to the claims asserted against her. This Court agrees.

"A party seeking to vacate an order of protection entered upon his or her default in appearing for a hearing on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition" (Matter of Idieru v Jeanpierre, 122 AD3d 852 [2nd Dept. 2014]; see CPLR 5015[a][1]; Matter of Mongitore v Linz, 95 AD3d 1130 [2nd Dept. 2012]; Matter of Nunez v Lopez, 103 AD3d 803, 804 [2nd Dept. 2013]; Matter of Joosten v Joosten, 32 AD3d 1030 [2nd Dept. 2006]). "[T]his rule is not applied with equal rigor in matrimonial actions where the State's interest in the marital res and allied issues * * * have called forth a more liberal approach, favoring dispositions on the merits'" (Schorr v Schorr, 213 AD2d 62 [1995], quoting Shaw v Shaw, 97 AD2d 403, 406 [2nd Dept. 1983]; see Anekwe v Okoroafor, 121 AD3d 930 [2nd Dept. 2014]). However, the determination of what constitutes a reasonable excuse for a default is left to the sound discretion of nisi prius in the interest of justice (see Matter of Hon v Chin, 126 AD3d 904, 905 [2nd Dept. 2015]), "the exercise of which will generally not be disturbed [on appeal] if there is support in the record therefor" (Gurreri v Village of Briarcliff Manor, 249 AD2d 508, 509 [2nd Dept. 1998], quoting MacMarty v Scheller, 201 AD2d 706, 707 [2nd Dept. 1994]).

Applying the foregoing principles to the instant matter, the Court finds that Kelly N. has failed to meet her burden to excuse her default under CPLR 5015. Despite the matters being scheduled for 9:30 and 10:00 a.m. on May 23, 2016, the case was actually called around 1:00 p.m., giving Kelly N. three additional hours to acquire the necessary transportation — either by bus, subway or taxi - to attend to court proceedings. While Kelly N.'s claims that her disability and lack of funds were part of her failure to appear on time, she provides no documentary or other evidence of those claims, instead merely relying on her conclusory affidavit. There is no medical report or doctor's letter attesting to her disability. Her conclusory claim of lack of funds for transportation and assertion that her ride to Court fell through, do not rise to a reasonable excuse for her failure to appear on the scheduled return date (see Matter of Matthew A. [Jocelyn A.], 91 AD3d 538 [1st Dept. 2012]; Matter of Gloria Marie S., 55 AD3d 320 [1st Dept. 2008]). She was always able to contact the Family Court to request an adjournment or a postponement for a later day or hour.

Even if this Court were to accept Kelly N.'s questionable excuses as reasonable, she has nevertheless failed to establish a meritorious defense to Maria N. and Mrs. C.'s substantive claims. Her conclusory and bold denial of the detailed claims against her does not amount to a potentially meritorious defense (see Matter of Idieru v Jeanpierre, 122 AD3d at 852; Matter of Giovanni [Wilmer B.], 99 AD3d 631, 631-632 [1st Dept. 2012]; Matter of Mongitore v Linz, 95 AD3d at 1130 ). Despite a full inquest where several allegations were raised against her by Maria N., Mrs. C. and Ms. C., Kelly N. did not endeavor to even attempt to deny the specifics of the abuse and threatening incidents. There is no affidavit by Kassidy or anybody else attesting to the facts. Nor does the fact that she had previously filed a Family Offense Petition against one of the petitioners constitute a meritorious defense to the claims against her in the instant action. When her lack of a reasonable excuse is coupled with a very tenuous defense, Kelly N.'s default cannot be excused and a default judgment against her was warranted.

In accordance with the foregoing, Kelly N.'s motion to excuse her default is denied. The remaining proceeding by Ms. N. has been previously scheduled for August 17, 2016 at 2:15 [*4]p.m., before the undersigned. This constitutes the decision and order of the Court.