Opinion
2018–11809 Docket No. V–19624–15
11-25-2020
In the MATTER OF Shenese JONES, respondent, v. Russell SPAIN, appellant.
Russell Spain, Brooklyn, NY, appellant pro se. Shenese Jones, Brooklyn, NY, respondent pro se.
Russell Spain, Brooklyn, NY, appellant pro se.
Shenese Jones, Brooklyn, NY, respondent pro se.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Dean Kusakabe, J.), dated August 21, 2017. The order, upon the father's failure to appear at a hearing, inter alia, granted the mother's petition for sole legal and physical custody of the subject child.
ORDERED that the appeal is dismissed, without costs or disbursements.
The parties, who were not married, are the parents of the subject child. In June 2015, the father filed a petition for sole legal and physical custody of the child, and approximately one month later, the mother filed a petition for the same relief. A hearing on the petitions was scheduled for August 21, 2017, but the father failed to appear. The Family Court dismissed the father's petition, and proceeded to inquest on the mother's petition. In an order dated August 21, 2017, after the inquest, the court, inter alia, granted the mother's petition for sole legal and physical custody of the child. The father appeals.
"No appeal lies from an order made upon the default of the appealing party" ( Matter of Saporito v. Ward, 160 A.D.3d 651, 651, 73 N.Y.S.3d 606 [internal quotation marks omitted] ). "The proper procedure is for the defaulting party to seek to vacate [his or her] default and, if necessary, appeal the denial of that request" ( Feldman v. Feldman, 185 A.D.3d 552, 554, 124 N.Y.S.3d 827 ). Here, the father's failure to appear at the scheduled hearing constituted a default, and thus, his appeal from the order entered upon his default must be dismissed (see CPLR 5511 ; Matter of Carino v. Carino, 160 A.D.3d 727, 71 N.Y.S.3d 361 ).
AUSTIN, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur.