| Matter of O'Leary v Frangomihalos |
| 2011 NY Slip Op 08365 [89 AD3d 948] |
| November 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jerome O'Leary, Respondent, v DeborahFrangomihalos, Respondent, and Heidi Mook, Appellant. |
—[*1]
Thomas W. McNally, Huntington Station, N.Y., for petitioner-respondent. Jeanne R. Burton, Ronkonkoma, N.Y., for respondent-respondent. Paraskevi Zarkadas, Centereach, N.Y., Attorney for the Children.
In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (Tarantino, Jr., J.),dated July 20, 2010, as, after a hearing, granted the father's petition to modify a custody order datedJanuary 12, 2007, so as to award him sole custody of the parties' children.
Ordered that the order dated July 20, 2010, is affirmed insofar as appealed from, without costs ordisbursements.
Although the mother failed to appear in person at the hearing, her counsel appeared on her behalfand participated in the hearing. Accordingly, the order was not entered on the mother's default, and thisappeal is properly before us (see Matter ofNewman v Newman, 72 AD3d 973 [2010]; Matter of Pollard v Pollard, 63 AD3d 1628 [2009]; Matter of Hopkins v Gelia, 56 AD3d1286 [2008]; cf. Matter of Willie Ray B.[Deanna W.B.], 77 AD3d 657, 657-658 [2010]).
"The grant or denial of a motion for 'an adjournment for any purpose is a matter resting within thesound discretion of the trial court' " (Matter ofSteven B., 6 NY3d 888, 889 [2006], quoting Matter of Anthony M., 63 NY2d 270,283 [1984]; see Matter of Braswell vBraswell, 80 AD3d 827, 829 [2011]; Matter of Zindle v Hernandez, 26 AD3d 338 [2006]). Here, the FamilyCourt set the hearing date more than 60 days in advance and issued a trial and scheduling order settinga date certain. Given the mother's failure to offer any proof that she was unable to attend because shewas in an inpatient drug treatment program, and particularly in light of her history of failing to providesuch proof, the court providently exercised its discretion in denying her attorney's request for anadjournment (compare Matter of Braswell v Braswell, 80 AD3d at 829; Matter of Nicholas S., 46 AD3d 830,831 [2007]; Matter [*2]of Zindle v Hernandez, 26 AD3d at338). Moreover, the court offered the mother the opportunity to testify telephonically on the secondday of the hearing if she provided proof that she was in an inpatient treatment program, but she failed toavail herself of the court's offer (compareMatter of Robert C. v Katherine D., 56 AD3d 297 [2008]). Accordingly, the courtprovidently exercised its discretion in holding the hearing in her absence (see Matter of StevenB., 6 NY3d at 889; Matter of Braswell v Braswell, 80 AD3d at 829; Matter ofNicholas S., 46 AD3d at 831; Matter of Zindle v Hernandez, 26 AD3d at 338).
The mother's remaining contention is unpreserved for appellate review (see Matter of Timosa v Chase, 21 AD3d1115, 1116 [2005]; Matter of Diaz vSantiago, 8 AD3d 562, 563 [2004]) and, in any event, is without merit (see Matter of Lowe v O'Brien, 81 AD3d1093, 1094 [2011]; Matter of Backus vClupper, 79 AD3d 1179, 1181 [2010]). Florio, J.P., Hall, Austin and Cohen, JJ., concur.