Matter of Neil F.J. v Maria I.M.

Matter of Neil F.J. v Maria I.M. 2022 NY Slip Op 05273 Decided on September 27, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 27, 2022
Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.
Docket No. V17999-10/19C Appeal No. 16273 Case No. 2021-04249

[*1]In the Matter of Neil F.J., Petitioner-Respondent,

v

Maria I.M., Respondent-Appellant.

Larry S. Bachner, New York, for appellant.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.

Leslie S. Lowenstein, Woodmere, attorney for the child.

Appeal from order, Family Court, Bronx County (David J. Kaplan, J.), entered on or about October 26, 2021, which, upon respondent mother's default, granted petitioner father's petition to modify a prior custody order to grant him sole custody of the subject child, with visitation only as arranged by the parties subject to the child's desire to visit, unanimously dismissed, without costs.

Family Court found that the mother had defaulted by failing to timely appear for the continued hearing, despite a history of lateness and warnings that a default would be entered if she did not timely appear. Respondent's proffered reason for her default at the remote hearings— nonfunctioning internet service — was reasonable. Nevertheless, no appeal lies from an order entered on default (CPLR 5511; Liberty Community Assoc., LP v DeClemente, 139 AD3d 532, 532 [1st Dept 2016]). As the mother did move to vacate her default, and no appeal lies from an order entered upon the aggrieved party's default, we are constrained to dismiss the appeal (see Matter of Fatima K. v Ousmane F., 167 AD3d 458 [1st Dept 2018]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 27, 2022