Opinion
2013-10191, Docket No. V-04635-11.
2015-04-15
In the Matter of XIAO–LAN MA, respondent, v. Anthony Valance WASHINGTON, appellant.
Herman Kaufman, Rye, N.Y., for appellant. Fersch Petitti LLC, New York, N.Y. (Danielle R. Petitti of counsel), for respondent.
Herman Kaufman, Rye, N.Y., for appellant. Fersch Petitti LLC, New York, N.Y. (Danielle R. Petitti of counsel), for respondent.
Paul B. Guttenberg, Syosset, N.Y., attorney for the child.
Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated October 8, 2013. The order, after a default and after an inquest, granted the mother's petition for custody of the subject child, directed that the father's visitation with the child be supervised, and granted the mother's application for an award of an attorney's fee.
ORDERED that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the father's request for an adjournment ( see CPLR 5511; Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99); and it is further,
ORDERED that the order is affirmed insofar as reviewed, with costs.
Where, as here, an order is made upon the appellant's default, review is limited to “matters which were the subject of contest below” (James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741; see Matter of Angie N.W. [Melvin A.W.], 107 A.D.3d 907, 908, 968 N.Y.S.2d 125; Brown v. Data Communications, 236 A.D.2d 499, 653 N.Y.S.2d 693). Accordingly, in this case, review is limited to the denial of the father's request for an adjournment at the conclusion of the first day of the custody hearing ( see Matter of Angie N.W. [Melvin A.W.], 107 A.D.3d at 908, 968 N.Y.S.2d 125; Matter of Tripp, 101 A.D.3d 1137, 1138, 957 N.Y.S.2d 389; Matter of Paulino v. Camacho, 36 A.D.3d 821, 828 N.Y.S.2d 496).
Whether to grant a party's request for an adjournment is a matter resting within the sound discretion of the Family Court ( see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646; Matter of Winfield v. Gammons, 105 A.D.3d 753, 963 N.Y.S.2d 272). The court must consider all relevant factors in making the determination ( see Matter of Tripp, 101 A.D.3d at 1138, 957 N.Y.S.2d 389; Matter of Sicurella v. Embro, 31 A.D.3d 651, 819 N.Y.S.2d 75). Here, in light of, inter alia, the father's history of missing court dates based on his unsubstantiated claims of impoverishment, the length of the pendency of the proceeding, and the merits of the proceeding, the Family Court providently exercised its discretion in denying his request for an adjournment ( see Matter of Tripp, 101 A.D.3d at 1138–1139, 957 N.Y.S.2d 389; Matter of Willie Ray B. [Deanna W.B.], 77 A.D.3d 657, 908 N.Y.S.2d 371; Matter of Sanaia L. [Corey W.], 75 A.D.3d 554, 903 N.Y.S.2d 916; Matter of Dakota B. [Brigitta B.], 73 A.D.3d 763, 899 N.Y.S.2d 631; Matter of Amber Megan D., 54 A.D.3d 338, 862 N.Y.S.2d 568).