| Matter of Sacks v Abraham |
| 2014 NY Slip Op 01010 [114 AD3d 799] |
| February 13, 2014 |
| Appellate Division, Second Department |
| In the Matter of Julie Sacks, Petitioner, v BarbaraAbraham, Respondent. (Proceeding No. 1.) In the Matter of Barbara Abraham,Appellant, v Julie Sacks et al., Respondents. (Proceeding Nos.2-5.) |
—[*1] Julie Sacks and Bruce Sacks, South Salem, N.Y., respondents pro se in proceedingNos. 2-5. Deborah D. Clegg, New Rochelle, N.Y., attorney for the children.
In proceedings, inter alia, pursuant to Family Court Act article 6 (proceeding No. 1)and Domestic Relations Law § 72 for grandparent visitation (proceeding Nos.2-5), the maternal grandmother appeals, as limited by her brief, from so much of an orderof the Family Court, Westchester County (Greenwald, J.), dated January 17, 2013, as,upon her failure to appear for a fact-finding hearing, the denial of her application forleave to appear in court telephonically, and the denial of her attorney's application for anadjournment, dismissed her petitions, with prejudice.
Ordered that the appeal from the order is dismissed except insofar as it brings up forreview the denial of the grandmother's application for leave to appear in courttelephonically and the grandmother's attorney's request for an adjournment (seeCPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs ordisbursements.
On June 21, 2012, after several appearances, conferences, and adjournments, thegrandmother's petitions for grandparent visitation were scheduled for a fact-findinghearing on [*2]August 29, 2012. The grandmother, wholived in Florida and was present in court on June 21, 2012, indicated that she could notcome back to New York on August 29, 2012, and requested that she be allowed toappear at the hearing by telephone. The Family Court denied the application, and told thegrandmother that she could either withdraw her petitions immediately, without prejudice,and re-file them at a later date, or appear in court for the fact-finding hearing on August29, 2012. The grandmother did not withdraw the petitions, and did not appear in court onAugust 29, 2012. Her attorney did appear, informed the court that the grandmother hadinjured her wrist and therefore could not travel because she used a walker, and requestedan adjournment. The court denied the attorney's application and dismissed thegrandmother's petitions, with prejudice, based upon a finding that the grandmother failedto prosecute the case.
A party may not appeal from an order or judgment entered upon his or her default(see CPLR 5511; Matterof Kondratyeva v Yapi, 13 AD3d 376, 376 [2004]). The proper procedure insuch instance is to move to vacate the default and, if necessary, appeal from the denial ofthe motion to vacate (see CPLR 5015 [a] [1]; Matter of Taurins v Taurins, 108 AD3d 723, 724 [2013];Matter of Kondratyeva v Yapi, 13 AD3d at 376-377). An order entered upon thedefault of the appealing party, however, brings up for review those matters which werethe subject of contest (seeMatter of Kalantarov v Kalantarova, 109 AD3d 471, 472 [2013]; Matter of Krische v Sloan, 100AD3d 758, 758 [2012]; Matter of Paulino v Camacho, 36 AD3d 821, 822 [2007];Tun v Aw, 10 AD3d651, 652 [2004]). Accordingly, since the order appealed from was entered upon thegrandmother's default, review is limited to those matters which were the subject ofcontest in the Family Court, namely the denial of the grandmother's application to appearin the proceeding by telephone and the denial of the request made by the grandmother'scounsel for an adjournment (see Matter of Kalantarov v Kalantarova, 109 AD3dat 472; Matter of Krische v Sloan, 100 AD3d at 758; Matter of Paulino vCamacho, 36 AD3d at 822).
The granting of an adjournment rests in the sound discretion of the hearing courtupon a balanced consideration of all relevant factors (see Matter of Feliciano v King, 108 AD3d 703, 704[2013]; Matter of Latrell S.[Christine K.], 80 AD3d 618, 619 [2011]; see also Matter of Krische vSloan, 100 AD3d at 758). Here, the Family Court did not improvidently exercise itsdiscretion in denying the application made by the grandmother's attorney for anadjournment (see Matter of Krische v Sloan, 100 AD3d at 758). Nor did thecourt improvidently exercise its discretion in denying the grandmother's request to appearin the proceeding telephonically (see id.; see also Matter of Kalantarov vKalantarova, 109 AD3d at 472). Skelos, J.P., Dickerson, Chambers and Miller, JJ.,concur.