IN RE: Khushal HOTAKI (2024)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Tamra Walker, J.), dated April 24, 2023.  The order, upon the father's failure to appear at a fact-finding hearing, dismissed the father's petition to enforce an order of the same court (Ashley Black, Ct. Atty. Ref.) dated July 26, 2018, without prejudice.

ORDERED that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the father's attorney's application for an adjournment of the fact-finding hearing (see CPLR 5511);  and it is further,

ORDERED that the order dated April 24, 2023, is affirmed insofar as reviewed, without costs or disbursements.

In an order dated July 26, 2018 (hereinafter the July 2018 order), the Family Court awarded the father certain parental access with the subject child.  In January 2020, the father filed a petition to enforce the July 2018 order, alleging, inter alia, that the mother violated the order by preventing the child from communicating with the father.  During proceedings held on November 21, 2022, in which the parties appeared in court telephonically, the court scheduled a fact-finding hearing to commence on April 24, 2023, and directed the parties to appear in person on that date.  The father failed to appear in person on April 24, 2023, and instead appeared in court telephonically.  In an order dated April 24, 2023 (hereinafter the April 2023 order), the court, upon the father's failure to appear at the fact-finding hearing, dismissed the father's petition without prejudice.  The father appeals.

Contrary to the father's contention, under the circumstances presented, the Family Court properly determined that the father's failure to appear in person at the fact-finding hearing as required constituted a default (see Matter of Reardon v. Krause, 219 A.D.3d 1710, 1711, 196 N.Y.S.3d 829;  Matter of Iyana W. [Shamark W.], 124 A.D.3d 418, 418, 1 N.Y.S.3d 48;  Matter of Jaquan Tieran B. [Latoya B.], 105 A.D.3d 498, 499, 963 N.Y.S.2d 190).

Although the April 2023 order was entered upon the father's failure to appear at the fact-finding hearing, the denial of the father's attorney's application for an adjournment of the fact-finding hearing is reviewable because that request was the subject of contest below (see Matter of Zowa D.P. [Jenia W.], 190 A.D.3d 744, 745, 135 N.Y.S.3d 879;  Matter of Rivera v. Diaz, 185 A.D.3d 695, 696, 124 N.Y.S.3d 846;  Matter of Sacks v. Abraham, 114 A.D.3d 799, 800, 980 N.Y.S.2d 525).  The granting of an adjournment for any purpose rests in the sound discretion of the court, and its determination will not be disturbed absent an improvident exercise of that discretion (see Matter of Zowa D.P. [Jenia W.], 190 A.D.3d at 745, 135 N.Y.S.3d 879;  Matter of Rivera v. Diaz, 185 A.D.3d at 696, 124 N.Y.S.3d 846).  “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75).  Here, the Family Court did not improvidently exercise its discretion in denying the father's attorney's application for an adjournment of the fact-finding hearing (see Matter of Rivera v. Diaz, 185 A.D.3d at 696, 124 N.Y.S.3d 846;  Matter of Sacks v. Abraham, 114 A.D.3d at 800, 980 N.Y.S.2d 525;  Matter of Krische v. Sloan, 100 A.D.3d 758, 759, 953 N.Y.S.2d 876).

The parties’ remaining contentions are either without merit or not properly before this Court.

CONNOLLY, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.