General
In the Matter of Rosh E. and Others, Infants. Florentino E., Respondent-Appellant; Commissioner of Social Services of the City of New York, Respondent
248 A.D.2d 179669 N.Y.S.2d 813·New York Supreme Court, Appellate Division·1998·NY
Concur — Sullivan, J. P., Milonas, Rubin and Tom, JJ.
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Opinion
In the Matter of Rosh E. and Others, Infants. Florentino E., Respondent-Appellant; Commissioner of Social Services of the City of New York, Respondent.
[669 NYS2d 813]
[MAJORITY]
—Order of disposition, Family Court, New York County (Leah Marks, J.), entered on or about October 17, 1996, which, upon findings of abuse made in respondent’s absence, placed the subject children in the custody of petitioner Commissioner of Administration for Children’s Services for 12 months, and bringing up for review a ruling denying respondent’s motion to vacate his default at the fact-finding hearing, unanimously reversed, on the facts, without costs, and the matter remanded for a new fact-finding hearing.
As argued by both petitioner and the law guardian, respondent’s motion to vacate the fact-finding determination made in his absence should have been granted, respondent having made a clear showing that his failure to appear at the hearing was not willful (Family Ct Act § 1042). Accordingly, we remand for a new fact-finding hearing.
Concur — Sullivan, J. P., Milonas, Rubin and Tom, JJ.