| Matter of Nicholas S. |
| 2007 NY Slip Op 10162 [46 AD3d 830] |
| December 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Nicholas S. Westchester county Department ofSocial Services, Respondent; Rhonda S., Appellant. |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz, MartinG. Gleeson, and Thomas Gardiner of counsel), for respondent. William E. Penny, Scarsdale, N.Y., Law Guardian.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appealsfrom an order of the Family Court, Westchester County (Duffy, J.), dated January 12, 2007,which denied her motion to vacate an order of disposition of the same court dated October 11,2006, entered upon her default.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court providently exercised its discretion in denying the mother's motion tovacate the order of disposition entered upon her default. The mother claimed that the writtennotice of the hearing, which was to take place on October 11, 2006, at 10:00 a.m., was destroyedin a flood at her home. However, the mother was present in court when the hearing wasscheduled. Additionally, there was no evidence presented to suggest that she contacted herattorney or the court to confirm the time of the hearing, and the mother did not allege that she didso. Under these circumstances, the Family Court correctly concluded that the mother "willfullyrefused to appear at the hearing" (Family Ct Act § 1042; see Matter of Christian T., 12 AD3d613 [2004]; Matter of W. Children, 256 AD2d 412, 413 [1998]; Matter ofCommissioner of Social Servs. v Margaret D., 221 AD2d 439 [1995]; Matter of JamelH. 187 AD2d 513 [1992]).[*2]
The Family Court also providently exercised itsdiscretion in denying the application of the mother's attorney for an adjournment of thedispositional hearing (see Matter ofVenditto v Davis, 39 AD3d 555 [2007]; Matter of Paulino v Camacho, 36 AD3d 821, 822 [2007]; Matter of Sicurella v Embro, 31 AD3d651 [2006]; cf. Matter of Anthony M., 63 NY2d 270, 283 [1984]; Matter ofHogan v Hogan, 271 AD2d 533 [2000]). In light of the mother's history of nonappearance forat least two prior court dates and her knowledge of the hearing date (see Matter of Starcy G., 13 AD3d532, 532-533 [2004]), the Family Court properly proceeded with the dispositional hearing inthe mother's absence (see Family Ct Act § 1042).
The mother's remaining contentions are without merit. Miller, J.P., Crane, Dillon and Balkin,JJ., concur.