Opinion
1322 CAF 16–02137
12-22-2017
In the Matter of Jamie T. CLAUSELL, Petitioner–Respondent, v. Flor A. SALAME, Respondent–Appellant.
THE LEGAL AID SOCIETY OF ROCHESTER, ROCHESTER (LEIGH ANN CHUTE OF COUNSEL), FOR RESPONDENT–APPELLANT.
THE LEGAL AID SOCIETY OF ROCHESTER, ROCHESTER (LEIGH ANN CHUTE OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:In this proceeding pursuant to Family Court Act article 8, respondent appeals from an order of protection requiring her, inter alia, to remain at least 500 feet from petitioner at all times and to refrain from any communication with petitioner. Initially, we agree with respondent that Family Court erred in disposing of the matter on the basis of respondent's purported default. " ‘A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ " ( Matter of Isaiah H., 61 A.D.3d 1372, 1373, 877 N.Y.S.2d 786 [4th Dept. 2009] ). Here, while respondent was not present at the hearing, her counsel participated in the hearing by, inter alia, cross-examining petitioner. We therefore deem it appropriate to address respondent's substantive contentions raised on appeal (see generally Matter of Cameron B. [Nicole C.], 149 A.D.3d 1502, 1503, 52 N.Y.S.3d 774 [4th Dept. 2017] ).
We reject respondent's contention that the court abused its discretion in denying her request for an adjournment of the hearing. The decision whether to grant a request for an adjournment rests in the sound discretion of the court (see Matter ofSteven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006]; Matter of Anthony M., 63 N.Y.2d 270, 283–284, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ). The record reflects that respondent was avoiding service of the summons to appear in the proceeding, thereby rendering it necessary for the court to ask the police to serve respondent therewith. Moreover, on the morning of the scheduled hearing, respondent conveyed misleading information to the court and gave inconsistent excuses why she could not be present. Under those circumstances, we cannot conclude that the court abused its discretion in refusing to adjourn the hearing (see Steven B., 6 N.Y.3d at 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ; Anthony M., 63 N.Y.2d at 283–284, 481 N.Y.S.2d 675, 471 N.E.2d 447 ). Respondent's claim that the court was acting out of bias when it refused to grant the adjournment is not preserved for our review (see Matter ofBowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301 [2d Dept. 2015] ).
Finally, we conclude that petitioner established by a preponderance of the evidence that respondent committed the family offense of aggravated harassment in the second degree (see Matter ofWhitney v. Judge, 138 A.D.3d 1381, 1383, 30 N.Y.S.3d 412 [4th Dept. 2016], lv denied 27 N.Y.3d 911, 39 N.Y.S.3d 379, 62 N.E.3d 119 [2016] ; see also Penal Law § 240.30[1][a] ). The record evidence, consisting of the testimony of petitioner and petitioner's mother, established that respondent "communicate[d] ... threat[s] [of] physical harm to" petitioner ( § 240.30[1][a] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.