Shabazz v. Johnson

Contrary to the Family Court’s determination, the motion of the putative father (hereinafter the appellant) to vacate an order of filiation and a support order entered upon his default in answering or appearing was properly brought pursuant to CPLR 5015 (a) (4) and, thus, was not untimely (see Matter of H. v M., 47 AD3d 629 [2008]; State of N.Y. Higher Educ. Servs. Corp. v Sparozic, 35 AD3d 1069, 1070 [2006]). Moreover, in view of the testimony and evidentiary submissions presented by the appellant at the hearing, the petitioner failed to establish by a preponderance of the evidence that the appellant was properly served in the proceeding (see Family Ct Act §§ 427, 525; CPLR 737 308; Matter of Griffin v Griffin, 215 AD2d 386 [1995]). Since the Family Court lacked personal jurisdiction over the appellant, the orders of filiation and support entered upon the appellant’s default should have been unconditionally vacated and the proceeding dismissed (see Delgado v Velecela, 56 AD3d 515, 516-517 [2008]; Matter of H. v M., 47 AD3d at 630). Fisher, J.E, Angiolillo, Lott and Sgroi, JJ., concur.