| Matter of Branch v Cole-Lacy |
| 2011 NY Slip Op 04047 [84 AD3d 953] |
| May 10, 2011 |
| Appellate Division, Second Department |
| In the Matter of Samuel R. Branch, Respondent, v MadonaCole-Lacy, Appellant. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals froman order of the Family Court, Nassau County (Singer, J.), dated April 9, 2010, as corrected by anorder of the same court dated May 17, 2010, which denied her objections to two orders of thesame court (Watson, S.M.), both dated January 19, 2010, entered upon her default in appearing ata hearing, after the denial of her request for an adjournment, inter alia, granting the father'spetition for leave to enter a money judgment for overpayment of child support arrears and tovacate a child support order dated February 21, 2008.
Ordered that the appeal from the order dated April 9, 2010, as corrected by the order datedMay 17, 2010, is dismissed except insofar as it brings up for review the denial of the mother'srequest for an adjournment (see CPLR 5511; Katz v Katz, 68 AD2d 536, 540[1979]), without costs or disbursements; and it is further,
Ordered that the order dated April 9, 2010, as corrected by the order dated May 17, 2010, isreversed insofar as reviewed, on the facts and in the exercise of discretion, without costs ordisbursements, the orders dated January 19, 2010, are vacated, the mother's objection to thedenial of her request for an adjournment is sustained, and the matter is remitted to the FamilyCourt, Nassau County, for a new hearing and a new determination on the petition thereafter.
A hearing on the instant petition was scheduled to be held on January 15, 2010, in the FamilyCourt, Nassau County. The mother appeared in court that morning, pro se, but allegedly becameill before the case was called. The mother submitted an adjournment request, indicating that shewas ill, and then left the courthouse, allegedly to go see a doctor. When the case was called atapproximately 3:00 p.m., the Support Magistrate acknowledged receiving the adjournmentrequest, but proceeded with the hearing in the mother's absence, in effect, denying the mother'srequest for an adjournment. Thus, when the Family Court granted the father's petition, it did soon the mother's default. "However, notwithstanding the prohibition set forth in CPLR 5511against an appeal from an order or judgment entered upon the default of the appealing party, theappeal from the order brings up for review those 'matters which were the subject of contest'before the [Family] Court" (Tun vAw, 10 AD3d 651, 652 [2004], quoting James v Powell, 19 NY2d 249, 256 n 3[1967]; see Matter of Brittany C. [LindaC.], 67 AD3d 788, 789 [2009]; Matter of Mary C. v Anthony C., 61 AD3d 682, 682-683 [2009];Sarlo-Pinzur v Pinzur, 59 AD3d607, 607-608 [2009]). Accordingly, review is limited to the denial of the mother's requestfor an adjournment (see Tun v Aw, 10 [*2]AD3d at 652).
" 'The granting of an adjournment for any purpose is a matter resting within the sounddiscretion of the trial court' " (Matter ofPaulino v Camacho, 36 AD3d 821, 822 [2007], quoting Matter of Anthony M.,63 NY2d 270, 283 [1984]; see Matter ofSteven B., 6 NY3d 888, 889 [2006]). Under the particular circumstances of this case,however, the Support Magistrate improvidently exercised her discretion in denying the mother'sapplication for an adjournment.
Accordingly, we grant the mother's objection to the denial of her request for an adjournment,and remit the matter to the Family Court, Nassau County, for a new hearing on the petition, and anew determination thereafter. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.
[Recalled and vacated. See 2011 NY Slip Op 87966(U).]