| Matter of Thorsland v Ray |
| 2007 NY Slip Op 09145 [45 AD3d 1119] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Stephanie Thorsland, Respondent, v Ronald Ray,Appellant. |
—[*1] Susan B. Marris, Law Guardian, Manlius.
Lahtinen, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredSeptember 25, 2006, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody and visitation.
Petitioner and respondent are the parents of four children (born in 1993 and 1995). In 1999,Family Court entered an order pursuant to the parties' stipulation granting them joint custody ofthe children with primary physical custody to petitioner and visitation to respondent. In June2006, petitioner initiated the present proceeding requesting modification of respondent'svisitation. Hearings on the petition were conducted, some of which respondent attended, but hefailed to appear at a hearing on September 14, 2006 and Family Court granted petitioner's motionfor a default judgment against him ordering that future visitation between respondent and hischildren be supervised. Respondent now appeals.
Arguing that he had a reasonable excuse for not appearing and that he has a meritoriousdefense to the allegations in the petition, respondent now requests that the default judgmentagainst him be vacated pursuant to CPLR 5015. However, inasmuch as no appeal lies from adefault judgment and respondent has not moved before Family Court to vacate the default,respondent's appeal must be dismissed (see CPLR 5511; Matter of Hill v Hillenbrand, 12 AD3d980, 981 [2004], lv denied 4 NY3d 705 [2005]; Matter of Shabazz vBlackmon, 274 AD2d 770, [*2]771 [2000], lvdismissed 95 NY2d 945 [2000]; Matter of Ashlee X., 244 AD2d 707, 709 [1997]).
In light of the dismissal of respondent's appeal, we do not address respondent's remainingargument.
Crew III, J.P., Spain, Carpinello and Rose, JJ., concur. Ordered that the appeal is dismissed,without costs.