Supreme Court, Appellate Division, Second Department, New York.
IN RE: Steven A. SAPORITO, appellant, v. Jennifer K. WARD, respondent.
Decided: April 04, 2018
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
Anthony M. Bramante, Brooklyn, NY, for appellant. Nangia & Kazansky, LLP, Brooklyn, N.Y. (Matthew J. Kazansky of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Lee Tarr and Janet Neustaetter of counsel), attorney for the child.
DECISION & ORDER
In a custody proceeding brought by the father of the subject child, the father appeals from an order of the Family Court, Kings County (William Franc Perry, J.), dated January 13, 2017. The order, upon, inter alia, the father's failure to appear at a continued hearing, awarded the parties joint legal custody of the subject child and maintained the parties' existing parenting access schedule.
ORDERED that the appeal is dismissed, without costs or disbursements.
“No appeal lies from an order made upon the default of the appealing party” (Matter of Layne v. Wyllie, 277 A.D.2d 239, 239, 715 N.Y.S.2d 652; see CPLR 5511; Matter of Graham v. Rawley, 140 A.D.3d 765, 766–767, 33 N.Y.S.3d 371; Matter of Zulme v. Maehrlein, 133 A.D.3d 608, 608, 18 N.Y.S.3d 552). “The proper procedure” is for the defaulting party “to move to vacate his or her default and, if necessary, appeal from the order deciding that motion” (Matter of Smith v. Richards, 286 A.D.2d 393, 393, 728 N.Y.S.2d 713; see Matter of Renner v. Costigan, 125 A.D.3d 664, 665, 4 N.Y.S.3d 53; Matter of Geraldine Rose W., 196 A.D.2d 313, 315–318, 609 N.Y.S.2d 324). Contrary to the father's contention, his failure to appear at the continued hearing, under the circumstances presented, constituted a default. The father's appeal from the order entered upon, inter alia, his default in appearing must, therefore, be dismissed (see CPLR 5511).
MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.
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