| Matter of Branch v Cole-Lacy |
| 2012 NY Slip Op 04336 [96 AD3d 741] |
| June 6, 2012 |
| Appellate Division, Second Department |
| In the Matter of Samuel R. Branch, Respondent, v MadonaCole-Lacy, Appellant. |
—[*1] Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg of counsel), forrespondent.
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, in effect, denying 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 on the petition and a new determination 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 Support Magistrate granted the father's petition, itdid so on the mother's default. The mother filed objections to the Support Magistrate's orders,including an objection to the denial of her request for adjournment. The Family Court denied theobjections.
"[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an orderor judgment entered upon the default of the appealing party, the appeal from the order brings upfor review those 'matters which were the subject of contest' before the [Family] Court" (Tun v Aw, 10 AD3d 651, 652[2004], quoting James v Powell, 19 NY2d 249, 256 n 3 [1967]; see Matter of Brittany C. [Linda C.], 67AD3d 788, 789 [2009]; Matter ofMary C. v Anthony C., 61 AD3d 682, 682-683 [2009]; Sarlo-Pinzur v Pinzur, 59 AD3d607, 607-608 [2009]). The only matter which was the subject of contest before the SupportMagistrate and, hence, the Family Court, was the denial of the mother's request for anadjournment. Accordingly, review is limited at this juncture to the denial of the mother'sobjection to the denial of her request for an adjournment (see Tun v Aw, 10 AD3d at652).
" '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,the Support Magistrate improvidently exercised her discretion in denying the mother'sapplication for an adjournment.
Accordingly, we sustain the mother's objection to the denial of her request for anadjournment, and remit the matter to the Family Court, Nassau County, for a new hearing on thepetition, and a new determination thereafter. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.