In the Matterof L.S., Petitioner–Respondent, v. D.S., Respondent–Appellant. (2026)

Appeal from so much of an order of fact-finding and disposition (one paper), Family Court, New York County (Gail A. Adams, Referee), entered on or about August 28, 2024, after an inquest upon appellant's default, as determined that appellant committed the family offenses of assault in the third degree and harassment in the second degree, unanimously dismissed, without costs, as taken from a nonappealable paper.  Appeal from same order, to the extent it brings up for review (1) appellant's request for an adjournment, and (2) the finding that appellant lacked standing to challenge her exclusion from petitioner's apartment, unanimously affirmed, without costs.

The appeal from the August 28, 2024 order of fact-finding and disposition should be dismissed to the extent that it seeks to challenge the finding that appellant committed a family offense against petitioner, as that finding was entered on appellant's default (see CPLR 5511;  Matter of Flor S. v Luis R., 211 AD3d 411, 411 [1st Dept 2022];  Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012] ).  However, Family Court's finding that appellant lacked standing to challenge her exclusion from petitioner's apartment, as well as the denial of her request for an adjournment, are appealable, as those requests were “the subject of contest below” (Matter of L.R.E. [LaPorsche E.], 243 AD3d 438, 438 [1st Dept 2025] ).

Contrary to appellant's contention, Family Court properly concluded that she lacked standing to contest her exclusion from petitioner's apartment.  The evidence adduced at the standing/exclusion hearing failed to establish that the apartment was appellant's primary residence (see Family Ct Act § 842).  Appellant testified that she was not listed on the lease for the apartment and had not entered the apartment between January 2020 and the November 9, 2021 incident that precipitated the petition.  Moreover, appellant presented no credible evidence that she lawfully occupied petitioner's apartment for at least 30 consecutive days (see Administrative Code of City of NY § 26521;  see Matter of Charmaine C. v Elizabeth C., 26 Misc 3d 307, 310–311, [Fam Ct, Bronx County 2009] ).

Family Court did not abuse its discretion in denying appellant's request for an adjournment, as her counsel did not provide a legal excuse for her failure to appear on August 28, 2024 (see Matter of Nautica Skyy W. [Amber NY–Cole W.], 198 AD3d 589, 589 [1st Dept 2021] ).  The transcript of the August 28, 2024 continued hearing shows that appellant's counsel told the court that he did not know why appellant was not at the hearing, Counsel represented that he emailed appellant the notice of inquest for the hearing, telling her that she could testify by telephone, and that the matter would proceed that day.

We do not have jurisdiction to review the August 28, 2024 order dismissing the family offense petition filed by appellant against petitioner because no notice of appeal was filed for that order.