Opinion
533466
05-05-2022
In the Matter of Washington County Department of Social Services, on Behalf of Vicki S. Vernon, Respondent, v. Nicholas J. Oudekerk, Appellant.
Robert N. Gregor, Lake George, for appellant. Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), for respondent.
Calendar Date: March 24, 2022
Robert N. Gregor, Lake George, for appellant.
Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
Egan Jr., J.P.
Appeal from an order of the Family Court of Washington County (Michelini, J.), entered January 26, 2021, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support.
In 2013, respondent (hereinafter the father) was ordered to pay $25 per month in child support for the benefit of a child (born in 2013). The father's failure to do so resulted in the issuance of 2017 orders that, among other things, directed him to comply with the terms of the 2013 order, committed him to a jail term, and suspended that commitment so long as he was in compliance with the dispositional terms of the 2017 order.
The father failed to make payments as directed, resulting in the commencement of this enforcement proceeding in February 2020. At the outset of the January 2021 virtual hearing on the petition, the father expressed his displeasure with assigned counsel, rebuffed Family Court's offer to represent himself and exited the hearing. Counsel for the father was then relieved, and the hearing proceeded with petitioner presenting proof that the father had not made regular support payments as required by the prior orders. Family Court thereafter issued three orders entered on January 26, 2021, namely: (1) an order of disposition finding that the father had failed to make support payments as required; (2) an order of commitment sentencing the father to a 15-day jail term; and (3) an order suspending that sentence for a period of three years so long as the father complied with his support obligation. The father purports to appeal from the order of disposition.
"The power of an appellate court to review a judgment [or order] is subject to an appeal being timely taken" (Hecht v City of New York, 60 N.Y.2d 57, 61 [1983] [citations omitted]; see CPLR 5513, 5515; Family Ct Act §§ 1115, 1118; Matter of Jordan v Horstmeyer, 152 A.D.3d 1097, 1098 n [2017]). An appeal is taken from a Family Court order by filing an "original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken," then serving that notice upon "any adverse party as provided for in [CPLR 5515 (1)]... and upon the child's attorney, if any," within the time allowed by Family Ct Act § 1113 (Family Ct Act § 1115). Accordingly, where an appealing party fails "to complete both steps by timely filing a notice of appeal in the proper court and by serving it on" the individuals entitled to notice (Matter of Community Hous. Improvement Program v Commissioner of Labor, 166 A.D.3d 1135, 1136 [2018]), "this [C]ourt lacks subject matter jurisdiction to hear the appeal" (Austin & Co. v H.D. Reichert Constr. Corp., 151 A.D.2d 851, 851-852 [1989], lv denied 75 N.Y.2d 704 [1990]; see Matter of Johnson v Smith, 80 A.D.3d 931, 932 [2011]; Matter of Malik v Coughlin, 127 A.D.2d 948, 949 [1987]; see also M Entertainment, Inc. v Leydier, 13 N.Y.3d 827, 828-829 [2009]).
The record before us does not contain a notice of appeal, with the father instead providing a "notice of poor person requesting permission to proceed" that served the different purposes of requesting poor person relief and the assignment of counsel in anticipation of an appeal from one or more of the January 2021 orders (see Family Ct Act §§ 262, 1118; CPLR 1101). Although a "mistake, omission, defect or irregularity" in a notice of appeal may be disregarded (CPLR 2001), and we may deem a notice of appeal to be valid where it "is premature or contains an inaccurate description of the judgment or order appealed from" (CPLR 5520 [c]), we cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one (see Futerfas v Shultis, 209 A.D.2d 761, 761 n [1994]; Town & Country House & Home Serv. v Newbery, 25 A.D.2d 875, 875 [1966]). Further, the record gives no indication that the document was served upon petitioner as required for a notice of appeal. Thus, as the record is devoid of proof that a notice of appeal was filed or served in a timely manner, the appeal must be dismissed (see Hecht v City of New York, 60 N.Y.2d at 61; Matter of Malik v Coughlin, 127 A.D.2d at 949).
Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that the appeal is dismissed, without costs.