Opinion
16273Dkt No. V17999-10/19CCase No. 2021-04249
09-27-2022
In the Matter of NEIL F. J., Petitioner-Respondent, v. MARIA I. M., Respondent-Appellant.
Larry S. Bachner, New York, for appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent. Leslie S. Lowenstein, Woodmere, attorney for the child.
Larry S. Bachner, New York, for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.
Leslie S. Lowenstein, Woodmere, attorney for the child.
Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.
Appeal from order, Family Court, Bronx County (David J. Kaplan, J.), entered on or about October 26, 2021, which, upon respondent mother's default, granted petitioner father's petition to modify a prior custody order to grant him sole custody of the subject child, with visitation only as arranged by the parties subject to the child's desire to visit, unanimously dismissed, without costs.
Family Court found that the mother had defaulted by failing to timely appear for the continued hearing, despite a history of lateness and warnings that a default would be entered if she did not timely appear. Respondent's proffered reason for her default at the remote hearings – nonfunctioning internet service – was reasonable. Nevertheless, no appeal lies from an order entered on default ( CPLR 5511 ; Liberty Community Assoc., LP v. DeClemente , 139 A.D.3d 532, 532, 30 N.Y.S.3d 550 [1st Dept. 2016] ). As the mother did move to vacate her default, and no appeal lies from an order entered upon the aggrieved party's default, we are constrained to dismiss the appeal (see Matter of Fatima K. v. Ousmane F. , 167 A.D.3d 458, 87 N.Y.S.3d 475 [1st Dept. 2018] ).