DECISION AFTER MOTION TO VACATE DEFAULT ORDER The parties have two children-in-common, N.B.U. and Z.J.U. On May 27, 2022, the mother, M.Y. (hereinafter “Mother” or “Ms. Y”), filed a support petition against the father, I.U. (hereinafter “Father” or “Mr. U”). The matter was assigned to Support Magistrate Elizabeth A. Bloom until she retired in December, 2022. Thereafter, the matter was assigned to this Court. Despite attempts to settle the matter, the parties were unable to resolve the case. On January 12, 2023, the Court scheduled the matter for a trial and issued a pre-trial order. On March 23, 2023, a trial in the matter commenced. Ms. Y was represented by retained counsel, M.B., Esq. (hereinafter “Mr. B”). Mr. U was represented by retained counsel, A.C., Esq. (hereinafter “Mr. C”). Since the trial could not be completed on March 23, 2023, additional trial dates were selected as follows: (1) May 9, 2023 from 2:00 P.M. — 4:30 P.M.; (2) May 24, 2023 from 11:30 A.M. — 4:30 P.M.; and, (3) May 25, 2023 from 9:30 A.M. — 12:30 P.M. On May 9, 2023, Mr. U appeared with Mr. C at 2:00 P.M. The matter was called at 2:20 P.M. Ms. Y and Mr. B failed to show for Court. Although the matter was scheduled for an in-person trial, the Court checked its virtual courtroom, but Ms. Y and Mr. B were not there either. There was no communication with the Court in regards to their non-appearance. That is to say, there was no adjournment request, and no telephone call or email to the Court stating that there was an emergency, or that Ms. Y and Mr. B were running late. The second floor waiting room was contacted and the officer there called out Ms. Y’s name, but there was no response. A telephone call was made to Mr. B, but his mailbox was full. Mr. C told the Court that Mr. B had contacted him earlier in the day and he “presumed” that it was about the trial. Both the Court and Mr. C noted on the record that they held Mr. B in high regard and that it was unlike him not to show for court. Both the Court and Mr. C considered that perhaps Mr. B and Ms. Y believed that the trial time was 2:30 P.M. Mr. C indicated that he would wait to see if Mr. B and his client appeared. Had Mr. B and Ms. Y appeared later, the Court would have continued the trial. At 2:42 P.M., Ms. Y and Mr. B were still not in the courthouse. Mr. C made a motion to dismiss based upon Ms. Y’s failure to pursue, which the Court granted. Mr. B and Ms. Y were not in the courthouse by the day’s end; a default dismissal order was issued against Ms. Y, and the parties’ temporary order of support was vacated. On June 2, 2023, Ms. Y filed a motion to vacate the default dismissal against her. See Not. of Mot. (B, 06/02/2023), Nassau County Family Court Docket Number F-04086-22; see also Aff. in Supp. (B, 06/02/2023), Nassau County Family Court Docket Number F-04086-22; Aff. in Supp. of Mot. (Y, 06/02/2023), Nassau County Family Court Docket Number F-04086- 22. In her papers, Ms. Y argues that both she and her attorney “miscalendared the date.” She maintains that such “inadvertent scheduling error” should be forgiven and that the Court should find that her default was excusable as a law office failure. On June 29, 2023, Mr. U filed opposition papers. See Aff. in Opp’n to Mot. to Vacate (C, 06/28/2023), Nassau County Family Court Docket Number F-04086-22. After having considered the parties’ arguments and having reviewed the audio recording of the parties’ March 23, 2023 court appearance, and having applied such to the law, the Court’s determination follows: New York State Civil Practice Law and Rules §5015(a)(1) permits a one-year period from the date that a order is served upon a defaulting party for that party to move to vacate based upon excusable default. See N.Y. C.P.L.R. §5015(a)(1) (McKinney’s 2023); see also Downing v. N.Y.C. Dep’t of Education, 108 A.D.3d 624,626 (2d Dep’t 2013); Sussman v. Jo-Sta Realty Corp., 99 A.D.3d 787, 788 (2d Dep’t 2012); Feldman v. Delaney, 94 A.D.3d 1043, 1043 (2d Dep’t 2012); U.S. Nat’l Bank Asso. v. Melton, 90 A.D.3d 742, 744 (2d Dep’t 2011). It is within a court’s sound discretion about whether or not to vacate an order entered upon default. See Biotek Servs., LLC v. South Is. Med. Asso., P.C., 2023 N.Y. App. Div. LEXIS 2798, at *2 (2d Dep’t May 24, 2023); see also U.S. Bank, N.A. v. Imtiaz, 198 A.D.3d 1005, 1007 (2d Dep’t 2021); Matter of Stephen Daniel A., 122 A.D.3d 837, 839 (2d Dep’t 2014); Matter of Mia P.R.D., 113 A.D.3d 679, 680 (2d Dep’t 2014); Matter of Annette J.S.J., 106 A.D.3d 1087, 1088 (2d Dep’t 2013); Matter of Martique S.C., 101 A.D.3d 1116, 1116 (2d Dep’t 2012); Matter of Daniel Marcus Y., 77 A.D.3d 843, 843 (2d Dep’t 2010); Matter of Princess M., 58 A.D.3d 854, 854 (2d Dep’t 2009). In order to succeed on a motion to vacate a default, the party seeking relief must meet a two-prong burden of establishing that the default is excusable and that there is merit to his or her defense. See Matter of Mia P.R.D., 113 A.D.3d at 680; see also Matter of Jah-Meik S.C., 108 A.D.3d 696, 697 (2d Dep’t 2013); Matter of Martique S.C., 101 A.D.3d 1116, 1116 (2d Dep’t 2012); Matter of Annette J.S.J., 106 A.D.3d at 1088; Matter of Andrea C.B.B., 95 A.D.3d 1308, 1309 (2d Dep’t 2012); Matter of Zeeyana B., 84 A.D.3d 1227, 1227 (2d Dep’t 2011); Matter of Samantha B., 72 A.D.3d 682, 683 (2d Dep’t 2010). Where a court determines that a party has failed to establish a reasonable excuse for his or her default, no further inquiry is necessary. See Beach 28 RE, LLC v. Somra, 2023 N.Y. App. Div. LEXIS 2332, at *3 (2d Dep’t May 3, 2023); see also Bambrick v. City of New York, 207 A.D.3d 610, 612 (2d Dep’t 2022); Imtiaz, 198 A.D.3d at 1008; Hudson City Sav. Bank v. Augustin, 191 A.D.3d 774, 775 (2d Dep’t 2021); Matter of Stephen Daniel A., 122 A.D.3d at 839; Martin v. Cooper, 96 A.D.3d 849, 850 (2d Dep’t 2012); Gustave-Francois v. Francois, 88 A.D.3d 881, 881 (2d Dep’t 2011); Proctor- Shields v. Shields, 74 A.D.3d 1347, 1348 (2d Dep’t 2010). Law office failure may be the basis for excusable default. See C.P.L.R. §2005 (McKinney’s 2023); see also Valesquez v. Landino, 213 A.D.3d 968, 969 (2d Dep’t 2023) (finding scheduling mistake reasonable excuse for default); Montefiore Med. Ctr. v. Hartford Acc. & Indem. Co., 37 A.D.3 673, 673 (2d Dep’t 2007) (scheduling error in attorney’s calendar department found reasonable excuse for default). However, mere neglect may not be considered to be a reasonable excuse for a party’s default. See Imtiaz, 198 A.D.3d at 1007; see also One West Bank, FSB v. Singer, 153 A.D.3d 714, 716 (2d Dep’t 2017). To that end, a detailed and credible explanation must be presented to substantiate such default. See Biotek Servs., LLC, 2023 N.Y. App. Div. LEXIS 2798, at *3 (2d Dep’t May 24, 2023); see also Imtiaz, 198 A.D.3d at 1007; Singer, 153 A.D.3d 716. Law office failure may not be excused where supported only by conclusory and unsubstantiated allegations. See Somra, 2023 N.Y. App. Div. LEXIS 2332, at *3 (attorney affirmation did not state detailed and credible account for failure to appear at two court conferences); Imtiaz, 198 A.D.3d at 1007; Augustin, 191 A.D.3d at 775 (vague, conclusory and confusing explanation of purported law office failure failed to set forth reasonable excuse for default); Singer, 153 A.D.3d 716 (reasonable excuse not found; counsel’s affirmation was conclusory and undetailed allegation of law office confusion). Moreover, law office failure may not be excused where a default results from repeated neglect. See Somra, 2023 N.Y. App. Div. LEXIS 2332, at *3; see also Chowdhury v. Weldon, 185 A.D.3d 649, 650 (2d Dep’t 2020); Mollica v. Ruzza, 151 A.D.3d 714, 714 (2d Dep’t 2017). On March 23, 2023, the parties appeared with their attorneys and a trial in the matter was commenced. As the court day was coming to a close and since the trial was nowhere near to being finished, the Court asked the parties to pick additional trial dates.1 The first date and time was selected to be May 9, 2023 at 2:00 P.M. The date was chosen quickly and was agreed upon by all of the parties. The parties took a lengthy amount of time to choose further trial dates and times. Those dates and times were May 24, 2023 at 11:30 A.M. and May 25, 2023 at 9:30 A.M. Further testimony was then taken. At the conclusion of trial for the day, the Court reminded the parties, “So I will see everyone May 9th. That will be the next time we’re here.”2 The Court was aware of the adjourn date and time. Mr. C and his client were aware of the adjourn date and time. If Mr. B and his client were unsure of the next court date and time, Mr. B could have contacted the Court or his adversary, or looked on the webfamily online database. He did not. In Castellotti v. Castellotti, 165 A.D.3d 926 (2d Dep’t 2018), a case on point, a party moved to vacate a default dismissal against him based upon alleged law office failure. See id. at 927. In Castellotti, the appellant and his counsel were present in court when his hearing was scheduled and the court confirmed the start time. Id. at 927. The Castellotti court found that “[c]onfusion or mistake as to a court date does not constitute a reasonable excuse where…the circumstances indicate mere neglect.” Id. at 927-28. The Second Department affirmed the Family Court’s finding that the appellant failed to establish excusable default. Id. at 927-28. Likewise, in In re Porscha Monique J., 21 A.D.3d 415 (2d Dep’t 2005), the Second Department upheld the Family Court’s denial of an appellant’s motion to vacate his default in failing to appear at his fact-finding hearing. See In re Porscha Monique J., 21 A.D.3d at 416. The In re Porscha Monique J. court found that since the appellant was in court when the date and time for his hearing was selected, his excuse that he believed the hearing was at a different time was unconvincing. See id. at 416. Thus, the Court finds that Ms. Y failed to establish excusable default. Accordingly, the Court hereby denies her motion to vacate the default dismissal issued against her. CONCLUSION ADJUDGED that Ms. Y has failed to establish excusable default for her failure to appear at her continued trial; and it is therefore, ORDERED that Ms. Y’s motion to vacate the default order issued against her is hereby denied. Dated: July 5, 2023
