Opinion
July 20, 1978
Order, Supreme Court, New York County, entered April 25, 1978, granting defendant's motion to direct plaintiff to pay $1,400 as a deposit for private school for the parties' children commencing in the fall of 1978, unanimously reversed, on the law and on the facts, and the motion denied, without costs or disbursements. Because defendant's motion was met, on the return date, with an application for an adjournment due to counsel's actual engagement in the Court of Appeals, we deem the order not to have been entered on appellant's default, the characterization by Special Term to the contrary notwithstanding. The court should have allowed the adjournment. Moreover, it should have denied the application on its merits. Not only does the direction to pay for private schooling conflict with the earlier pendente lite order of Shainswit, J., but also contravenes the well-settled rule that, in the absence of special circumstances (Matter of Kotkin v Kerner, 29 A.D.2d 367), the father should not be compelled, over his objection to pay for private schooling where "the community makes available to children through the public school system the education which each child is entitled to as a matter of course" (Borden v Borden, 130 N.Y.S.2d 831, 833; see Winston v Winston, 50 A.D.2d 527; cf. Brandt v Brandt, 63 A.D.2d 901).
Concur — Kupferman, J.P., Lupiano, Birns, Fein and Lane, JJ.