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Supreme Court, Appellate Division, First Department, New York.

IN RE: ANGEL N., Petitioner–Appellant, v. ELIZABETH A., Respondent–Respondent.


Decided: February 26, 2019

Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent. Janet Neustaetter, The Children's Law Center, Brooklyn (Chai Park of counsel), attorney for the child.

The January 15, 2016 order was issued on the father's default, and because he apparently “did not avail himself of the opportunity to vacate his default, and no appeal lies from an order entered upon the aggrieved party's default,” the appeal is dismissed (see Fatima K. v. Ousmane F., 167 A.D.3d 458 [1st Dept. 2018];  see also CPLR 5511).  Since the October 28, 2015 order had expired and there was a subsequent order concerning visitation, namely, the January 15, 2016 order, the appeal from the October 28, 2015 order is dismissed as academic (see Matter of Monsunlola O., 231 A.D.2d 638, 647 N.Y.S.2d 961 [2d Dept. 1996], lv denied 89 N.Y.2d 805, 653 N.Y.S.2d 917, 676 N.E.2d 499 [1996] ).

Were we to consider the merits, we would affirm.  The father had a statutory right to counsel in these proceedings (see Family Ct Act § 262[a] ), but also had the right to waive counsel and proceed pro se, provided he did so knowingly, intelligently, and voluntarily (Matter of Massey v. Van Wyen, 108 A.D.3d 549, 550, 969 N.Y.S.2d 464 [2d Dept. 2013] ).  “Where a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary” (Matter of Aleman v. Lansch, 158 A.D.3d 790, 792, 72 N.Y.S.3d 122 (2d Dept. 2018).

While there is no rigid formula to the court's inquiry, “there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel” (Matter of Belmonte v. Batista, 102 A.D.3d 682, 682–683, 961 N.Y.S.2d 174 [2d Dept. 2013] ).  The court below satisfied these standards.

The record before us shows that the court took great care to remind the father, at every appearance and sometimes more than once during an appearance, of his right to assigned counsel and its ability to assign him counsel at no cost to him.  Moreover, and contrary to the father's contentions, the court expressly warned him of the dangers and disadvantages of proceeding without counsel.  In particular, it warned him that unfamiliar concepts would likely arise about which a lawyer could advise him, and warned him of the possibility that his petitions could be dismissed.

We have considered the parties' remaining arguments and find them unavailing.