Opinion
696 CAF 22-00161
09-29-2023
In the Matter of Charles REARDON, Petitioner-Respondent, v. Cynthia KRAUSE, Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. CAITLIN M. CONNELLY, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RUSSELL E. FOX OF COUNSEL), ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
CAITLIN M. CONNELLY, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RUSSELL E. FOX OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent challenges the denial of her attorney's request for an adjournment, and the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order entered upon her default that, inter alia, awarded petitioner father sole custody of the subject child, with supervised visitation to the mother. The mother contends that Family Court erred in entering the order upon her default after she appeared for the virtual evidentiary hearing on the father's petition by telephone rather than by videoconference because the court had not clearly directed her to appear visually and her attorney appeared at the hearing. We reject that contention.
Subject to limited exceptions not applicable here, a party "may prosecute or defend a civil action in person or by attorney," including such an action in Family Court ( CPLR 321 [a] [emphasis added]; see Family Ct Act § 165 [a] ; Matter of Kwasi S. , 221 A.D.2d 1029, 1030, 634 N.Y.S.2d 579 [4th Dept. 1995] ; Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 165 ). Thus, a party's "failure to appear [in person] at the hearing on [a] petition does not automatically constitute a default" ( Matter of David A.A. v. Maryann A. , 41 A.D.3d 1300, 1300, 837 N.Y.S.2d 479 [4th Dept. 2007] ; see e.g. Matter of Bailey v. Bailey , 213 A.D.3d 1329, 1329, 183 N.Y.S.3d 659 [4th Dept. 2023], lv denied 39 N.Y.3d 913, 189 N.Y.S.3d 447, 451, 210 N.E.3d 942, 946 [2023]; Matter of Cameron B. [Nicole C.] , 149 A.D.3d 1502, 1503, 52 N.Y.S.3d 774 [4th Dept. 2017] ; Matter of Daniels v. Davis , 140 A.D.3d 1688, 1688, 34 N.Y.S.3d 287 [4th Dept. 2016] ; see generally CPLR 3215 [a] ). Nonetheless, a party's failure to appear may, under certain circumstances, constitute a default, particularly where the party's attorney, although present, declines to participate in the hearing in the party's absence and instead elects to stand mute (see Matter of Bianca F. [Terrald F.] , 191 A.D.3d 1491, 1491, 138 N.Y.S.3d 432 [4th Dept. 2021], lv denied 37 N.Y.3d 901, 2021 WL 2151672 [2021] ; Matter of Lastanzea L. [Lakesha L.] , 87 A.D.3d 1356, 1356, 929 N.Y.S.2d 922 [4th Dept. 2011], lv dismissed in part & denied in part 18 N.Y.3d 854, 938 N.Y.S.2d 844, 962 N.E.2d 267 [2011] ; cf. Matter of Clausell v. Salame , 156 A.D.3d 1401, 1401, 65 N.Y.S.3d 873 [4th Dept. 2017] ; Cameron B. , 149 A.D.3d at 1503, 52 N.Y.S.3d 774 ; see also Matter of Jaylen Derrick Jermaine A. [Samuel K.] , 125 A.D.3d 535, 536, 5 N.Y.S.3d 370 [1st Dept. 2015] ; Matter of Naomi KK. v. Natasha LL. , 80 A.D.3d 834, 835, 914 N.Y.S.2d 408 [3d Dept. 2011], lv denied 16 N.Y.3d 711, 2011 WL 1643283 [2011] ; Matter of Handibode v. Martensen , 71 A.D.3d 1145, 1145, 900 N.Y.S.2d 879 [2d Dept. 2010], lv denied 15 N.Y.3d 703, 2010 WL 2572181 [2010] ).
Here, the record establishes that, during a pretrial conference weeks in advance of the scheduled hearing, the court advised the mother that she needed to appear virtually "via the [Microsoft] Teams link" to avoid the prospect of default and the mother, after initially expressing discomfort with appearing visually as opposed to telephonically only, subsequently confirmed her understanding that she was required to "appear via videoconference" for the hearing. The mother was even offered the opportunity to appear visually via computer from a kiosk in the courthouse where her attorney would also be physically present. We thus conclude that, contrary to the mother's assertion, she was adequately "warned of the consequences of failing to appear by video and was given ample time to find access to a computer or other device that would permit [her] to participate by video" ( Matter of Darlene H. v. Abdus R. , 204 A.D.3d 550, 551, 165 N.Y.S.3d 282 [1st Dept. 2022], lv denied 38 N.Y.3d 911, 172 N.Y.S.3d 425, 429, 192 N.E.3d 353, 357 [2022]).
On the date of the hearing, however, the mother did not appear visually, either via videoconference or from a computer in a kiosk at the courthouse; rather, the mother called into the proceeding by telephone. Although the mother initially complained of technical difficulties with her cell phone in her attempts to connect to the videoconference, she also conveyed that her preference was to appear at the hearing via telephone only, to which the court responded by explaining that it needed to see her in order to adequately assess her credibility (see Matter of Ferguson v. Leclair , 191 A.D.3d 1380, 1380, 137 N.Y.S.3d 788 [4th Dept. 2021], appeal dismissed 37 N.Y.3d 926, 146 N.Y.S.3d 867, 169 N.E.3d 1230 [2021] ). The court afforded the mother an opportunity to confer with her attorney to address her failure to appear in the manner required and, upon returning to the videoconference, the mother's attorney indicated that the mother was unable to resolve the purported technical difficulties and requested an adjournment. The court, concluding that the mother had adequate warning that she needed to appear visually at the hearing and ample time to ensure that she could so appear, denied the request for an adjournment and determined that it would proceed by inquest. Inasmuch as the mother's attorney, although present, thereafter declined to participate in the inquest in the mother's absence and instead elected to stand mute, we conclude that the court properly determined that the mother's failure to appear in the manner required constituted a default (see Lastanzea L. , 87 A.D.3d at 1356, 929 N.Y.S.2d 922 ; cf. Bianca F. , 191 A.D.3d at 1491, 138 N.Y.S.3d 432 ; Cameron B. , 149 A.D.3d at 1503, 52 N.Y.S.3d 774 ; see also Naomi KK. , 80 A.D.3d at 835, 914 N.Y.S.2d 408 ; Handibode , 71 A.D.3d at 1145, 900 N.Y.S.2d 879 ).
"[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]" ( Tun v. Aw , 10 A.D.3d 651, 652, 782 N.Y.S.2d 96 [2d Dept. 2004], quoting James v. Powell , 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967], rearg denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 [1967] ; see Matter of DiNunzio v. Zylinski , 175 A.D.3d 1079, 1080, 108 N.Y.S.3d 634 [4th Dept. 2019] ). Thus, in this appeal, review is limited to the mother's contention that the court abused its discretion in denying her attorney's request for an adjournment (see Matter of Ramere D. [Biesha D.] , 177 A.D.3d 1386, 1386-1387, 110 N.Y.S.3d 618 [4th Dept. 2019], lv denied 35 N.Y.3d 904, 2020 WL 2203889 [2020] ; Matter of Martin v. Martin , 121 A.D.3d 693, 693-694, 993 N.Y.S.2d 179 [2d Dept. 2014], lv denied 26 N.Y.3d 911, 2015 WL 7289439 [2015] ). We reject that contention. "The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( Matter of Steven B. , 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ). Here, the mother's attorney "failed to demonstrate that the need for the adjournment ... was not based on a lack of due diligence on the part of the mother or her attorney" ( Matter of Sophia M.G.-K. [Tracy G.-K.] , 84 A.D.3d 1746, 1747, 922 N.Y.S.2d 907 [4th Dept. 2011] ; see Matter of Grice v. Harris , 114 A.D.3d 1276, 1276, 980 N.Y.S.2d 865 [4th Dept. 2014] ; see generally Steven B. , 6 N.Y.3d at 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ). Indeed, the record supports the court's determination that the mother had been adequately warned of the consequences of failing to appear visually at the virtual hearing and was afforded ample time to find access to a computer or other functional device that would permit her to participate via videoconference (see Darlene H. , 204 A.D.3d at 551, 165 N.Y.S.3d 282 ). Consequently, we conclude that the court did not abuse its discretion in denying the mother's request for an adjournment (see Grice , 114 A.D.3d at 1276, 980 N.Y.S.2d 865 ). Finally, the remaining issue raised by the mother is not reviewable on appeal from the order entered upon her default because it was not a subject of contest before the court (see Matter of Larae L. [Heather L.] , 202 A.D.3d 1454, 1455, 158 N.Y.S.3d 918 [4th Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1573561 [2022] ; cf. DiNunzio , 175 A.D.3d at 1080-1082, 108 N.Y.S.3d 634 ).