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Defendant Moves to have Order for Protection Vacated

This is a matter being heard in the Family Court of the City of New York in Bronx County. The petitioner in this case is Lloyd Grant. A New York Family Lawyer said the respondent of the case is Darlene Pugh. The respondent, Darlene Pugh has moved to have the final order of protection granted in favor of the petitioner of Lloyd Grant vacated. The respondent failed to appear on the 18th of August, 2008 when this order was made. She denies being served with any papers for the previous hearing.

Case Background

On the 15th of August, 2008, the petitioner, Lloyd Grant filed a family offense petition stating that on the 8th of August, 2008, when they were leaving the Bronx Family Court the respondent threatened him. The couple was appearing in a delinquency action that involved their son DG. At the time the threat was made, Ms. Pugh was escorted from the building, but she was not arrested. A New York Custody Lawyer said the couple was scheduled to reappear regarding the delinquency matter on the 18th of August, 2008. A temporary ex parte order of protection was issued to Mr. Grant returnable on the same date as the delinquency hearing was scheduled.

On the 18th of August, Mr. Grant and the child’s attorney appeared in court. The court was informed that Ms. Pugh had been present at the delinquency hearing part 14 regarding their son earlier that morning. A notarized affidavit showed that the Kecia Jefferson had served Ms. Pugh with the petition and temporary order of protection on the 18th of August, 2008 at 9:30 a.m.

Ms. Pugh failed to appear in part 3 on the 18th of August 2008. A Queens Family Lawyer said the court then held an inquest at 12:10 p.m. and made the findings of fact regarding the case. A final order of protection was provided on default based on the testimony provided by Mr. Grant and the fact that Ms. Pugh failed to show up in court.

On the 23rd of October, 2008, Ms. Pugh filed a motion to have the final order of protection vacated. Under CPLR 5015 an order that is entered on default can be vacated if a valid reason for the default can be provided. Ms. Pugh claims that she was never served with the papers and states that she had no reason to be in court in the Bronx on the 18th of August, 2008. She argues that the date of the affidavit of service is not correct and that she has not had any contact with Mr. Grant in over 12 years.

Case Discussion and Decision

Testimony was provided to the court by Ms. Jefferson who served Ms. Pugh with the appropriate papers on the 18th of August. Ms. Jefferson states that she saw Ms. Pugh outside of the courthouse on that particular date and handed her the appropriate papers.

The court finds that Ms. Pugh was in fact served with the appropriate papers. However, since she was served within 24 hours of the return date she is entitled to a 3 day adjournment. For this reason, the final order of protection is vacated for thirty days and the temporary protection order will be reinstated. Ms. Pugh has the option to show cause with notice to Mr. Grant to set a date for a trial on the family offense petition. If Ms. Pugh fails to move within 30 days of the date of this order the final order of protection will be reinstated.

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