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Matter of J.S. v. F.M.

Lack of Social Security Number on Filiation Order Did Not Constiute Defect, Vacatur Denied

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PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER   On or about July 25, 2019, movant’s counsel, Jerome A. Scharoff, filed a motion seeking an order vacating the Order of Filiation dated May 20, 2004 pursuant to CPLR §5015 and for such other relief as the Court may find just and proper. The Attorney for the Child filed her affirmation in opposition on or about September 4, 2019. Movant’s counsel filed his reply papers on October 18, 2019. In his motion, movant argues that the Order of Filiation dated May 20, 2004 is defective and unenforceable because it does not contain the Social Security number of the father as required by F.C.A. §542(a). Further, he argues that despite being present in court the day the order of filiation was issued, he was never served with the order, and therefore his time to move to be relieved from the Order of Filiation had never begun to run pursuant to CPLR §5015.1 Legal Analysis The movant’s reliance on CPLR §5015 is misguided. Pursuant to CPLR §5015, the court is empowered to vacate a default judgment made within one year if the default is excusable. Additionally, a judgment may be vacated if there is newly-discovered evidence; fraud; misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. In order for movant to obtain vacatur of a default, the Order of Filiation would have had to have been made on default. Movant admits in his papers that he was present, with counsel, on the day the Order of Filiation was entered. Therefore, the order was not made on default and the order cannot be vacated on that basis. (Movant’s Affidavit

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