| Matter of Deshane v Deshane |
| 2014 NY Slip Op 08685 [123 AD3d 1243] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Debra A. Deshane et al.,Respondents, v Corey P. Deshane, Respondent, and Crystal A. Arquitte,Appellant. |
John A. Cirando, Syracuse, for appellant.
G. Scott Walling, Schenectady, attorney for the children.
Lynch, J. Appeal from an order of the Family Court of St. Lawrence County (Morris,J.), entered March 12, 2013, which granted petitioners' application, in a proceedingpursuant to Family Ct Act article 6, for custody of the subject children.
Petitioners are the paternal grandparents of five minor children (born in 2002, 2005,2006, 2008 and 2009), whose parents are respondent Crystal A. Arquitte (hereinafterrespondent) and respondent Corey P. Deshane.[FN1] In September 2012, petitionerscommenced this proceeding seeking custody of all five children. At that time, the twooldest children and the youngest child resided with petitioners, while the other twochildren had relocated with respondent in August 2012 to an area near the City ofSyracuse, Onondaga County. The proceedings were adjourned several times becausepetitioners lacked any contact information for respondent. Eventually, [*2]respondent was personally served with a copy of thepetition on December 17, 2012 at an address in the Village of Liverpool, OnondagaCounty. When respondent failed to appear at a scheduled January 4, 2013 return date, thematter was rescheduled for January 28, 2013, with notice sent to the Liverpool address.On January 25, 2013, respondent submitted an application to appear by phone listing theLiverpool address on her application.[FN2] When respondent failed to appear onJanuary 28, 2013, Family Court rescheduled the matter for a hearing on March 8, 2013,sending a further notice to the Liverpool address and advising that a failure to appearwould forfeit her right to participate. The court also informed respondent of her right tocounsel and included a Public Defender application. On February 6, 2013, counsel fromthe conflict Public Defender's office filed a notice of appearance on respondent's behalf.Respondent also faxed a further note to the court on February 13, 2013 seeking to appearby phone for a February 19, 2013 support proceeding. On March 8, 2013, respondent'scounsel appeared, but provided no explanation whatsoever as to the whereabouts of herabsent client and failed to participate in the hearing. The hearing ensued and, upon theconsent of the father and the attorney for the children, the court granted the petition.Respondent now appeals.
Under the scenario described above, we conclude that Family Court properly deemedrespondent in default, notwithstanding the appearance of counsel on her behalf (see Matter of Scott KK. v PatriciaLL., 110 AD3d 1260, 1261 [2013], lv dismissed and denied 22 NY3d1054 [2014]; Matter of Derek P.v Doris Q., 92 AD3d 1103, 1105 [2012], lv dismissed and denied 19NY3d 831 [2012]; Matter ofNaomi KK. v Natasha LL., 80 AD3d 834, 835 [2011], lv denied 16NY3d 711 [2011]). We are satisfied that respondent was duly notified of the March 8,2013 hearing, and she was extended every accommodation by the court to participate.We also note petitioner Debra A. Deshane's testimony that respondent telephoned her afew days before the hearing advising that she would not attend. Having defaulted,respondent is precluded from appealing the ensuing order (see Matter of Derek P. vDoris Q., 92 AD3d at 1105). The proper procedure would be for respondent to moveto vacate the default and, if denied, appeal from that order (see Matter of Scott KK. vPatricia LL., 110 AD3d at 1261). As such, the merits of the appeal are not beforeus.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the appeal isdismissed, without costs.
Footnote 1:The attorney for thechild advises that the father passed away during the pendency of this appeal. Thisproceeding may continue (CPLR 1015 [b]; see Adamec v Mueller, 94 AD3d 1212, 1213 n 2 [2012],lv denied 20 NY3d 856 [2013]).
Footnote 2:Although the applicationbears the caption for a pending Family Ct Act article 4 proceeding, it lists a January 28,2013 appearance. Since the application was incomplete, Family Court left a messagerequesting a return call, but respondent did not respond.