| Matter of Angie N.W. (Melvin A.W.) |
| 2013 NY Slip Op 04616 [107 AD3d 907] |
| June 19, 2013 |
| Appellate Division, Second Department |
| In the Matter of Angie N.W. Administration for Children'sServices et al., Respondents; Melvin A.W., Appellant, et al., Respondent. (ProceedingNo. 1.) In the Matter of Christian A.W. Administration for Children's Services et al.,Respondents; Melvin A.W., Appellant, et al., Respondent. (Proceeding No. 2.) In theMatter of Kiara A.W. Administration for Children's Services et al., Respondents; MelvinA.W., Appellant, et al., Respondent. (Proceeding No. 3.) In the Matter of Nativa A.W.Administration for Children's Services et al., Respondents; Melvin A.W., Appellant, etal., Respondent. (Proceeding No. 4.) |
—[*1] Rosin Steinhagen Mendel, New York, N.Y. (Douglas H. Reiniger of counsel), forpetitioner-respondent Children's Aid Society. Steven Banks, New York, N.Y. (Tamara A. Steckler and John A. Newbery ofcounsel), attorney for the children.
In related proceedings pursuant to Social Services Law § 384-b to terminateparental [*2]rights on the ground of permanent neglect,the father appeals, as limited by his brief, from so much of four orders of fact-finding anddisposition (one as to each child) of the Family Court, Richmond County (Lim, J.), alldated May 29, 2012, as, upon his default in appearing at fact-finding and dispositionalhearings, found that he permanently neglected the subject children, terminated hisparental rights, and transferred the custody and guardianship of the subject children tothe Children's Aid Society and the Commissioner of the Administration for Children'sServices of the City of New York for the purpose of adoption.
Motion by the petitioner-respondent Children's Aid Society on appeals from fourorders of fact-finding and disposition of the Family Court, Kings County, all dated May29, 2012, to dismiss the appeals on the ground that no appeal lies from an order enteredupon the default of the appealing party. By decision and order on motion of this Courtdated September 27, 2012, the motion was held in abeyance and referred to the panel ofJustices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeals, it is,
Ordered that the motion is granted except insofar as the appeals seek to review thedenial of the father's application for an adjournment of the fact-finding and dispositionalhearings, and the motion is otherwise denied; and it is,
Ordered that the appeals from the orders of fact-finding and disposition are dismissedexcept insofar as they bring up for review the denial of the father's application for anadjournment of the fact-finding and dispositional hearings (see CPLR 5511; see also Matter of Paulino vCamacho, 36 AD3d 821 [2007]; Katz v Katz, 68 AD2d 536 [1979]);and it is further,
Ordered that the orders of fact-finding and disposition are affirmed insofar asreviewed, without costs or disbursements.
Where, as here, the orders appealed from were made upon the appellant's default,"review is limited to matters which were the subject of contest below" (Brown v DataCommunications, 236 AD2d 499, 499 [1997]; see James v Powell, 19 NY2d249, 256 n 3 [1967]; Matter ofConstance P. v Avraam G., 27 AD3d 754, 755 [2006]). Accordingly, in thiscase, review is limited to the denial of the father's application for an adjournment, whichwas made by his attorney prior to the fact-finding and dispositional hearings (see Matter of Paulino vCamacho, 36 AD3d 821, 822 [2007]; Tun v Aw, 10 AD3d 651, 651-652 [2004]; Brown vData Communications, 236 AD2d at 499; see also Matter of Willie Ray B. [Deanna W.B.], 77 AD3d657, 657-658 [2010]; Matter of Amber Megan D., 54 AD3d 338, 338-339[2008]).
"The granting of an adjournment for any purpose is a matter resting within the sounddiscretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984];see Matter of Steven B., 6NY3d 888, 889 [2006]; Matter of Paulino v Camacho, 36 AD3d at 822). "Inmaking such a determination, the court must undertake a balanced consideration of allrelevant factors" (Matter ofSicurella v Embro, 31 AD3d 651, 651 [2006]; see Matter of Paulino vCamacho, 36 AD3d at 822).
Here, in light of, inter alia, the failure of the father's attorney to offer any explanationfor the father's absence, the Family Court providently exercised its discretion in denyingthe application for an adjournment (see Matter of Kinara C. [Jerome C.], 89 AD3d 839, 841[2011]; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d at 658; Matter ofAmber Megan D., 54 AD3d at 338; Matter of Paulino v Camacho, 36 AD3dat 822; Tun v Aw, 10 AD3d at 651-652; Brown v Data Communications,236 AD2d at 499).
The father's remaining contentions are not properly before this Court. Mastro, J.P.,Rivera, Lott and Miller, JJ., concur.