Opinion
2019–09871 2019–10440 Docket Nos. O–15413–19, V–15415–19
07-08-2020
In the Matter of Elijah RIVERA, respondent, v. Miguel DIAZ, appellant.
Dean M. Solomon, Mamaroneck, NY, for appellant. Maria J. Frank, Yorktown Heights, NY, for respondent. Christina T. Hall, Harrison, NY, attorney for the child.
Dean M. Solomon, Mamaroneck, NY, for appellant.
Maria J. Frank, Yorktown Heights, NY, for respondent.
Christina T. Hall, Harrison, NY, attorney for the child.
MARK C. DILLON, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from (1) an amended order of the Family Court, Westchester County (Arlene E. Katz, J.), entered August 6, 2019, and (2) an order of the same court also entered August 6, 2019. The amended order entered August 6, 2019, inter alia, upon the denial of the father's request for an adjournment or for leave to appear in court telephonically, and after an inquest following the father's default, granted the mother's petition for sole legal and physical custody of the subject child. The order entered August 6, 2019, denied the father's application to sign an order to show cause.
ORDERED that the appeal from the amended order entered August 6, 2019, is dismissed except insofar as it brings up for review the denial of the father's request for an adjournment or for leave to appear in court telephonically (see CPLR 5511 ; Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99 ); and it is further,
ORDERED that the amended order entered August 6, 2019, is affirmed insofar as reviewed, without costs or disbursements; and it is further,
ORDERED that the appeal from the order entered August 6, 2019, is dismissed, without costs or disbursements, on the ground that no appeal lies from the denial of an application to sign an order to show cause (see Smith v. Smith, 178 A.D.3d 980, 112 N.Y.S.3d 580 ; Khanal v. Sheldon, 74 A.D.3d 894, 904 N.Y.S.2d 453 ; Matter of Astoria Gas Turbine Power, LLC v. Tax Commn. of City of N.Y., 14 A.D.3d 553, 788 N.Y.S.2d 417, affd 7 N.Y.3d 451, 824 N.Y.S.2d 189, 857 N.E.2d 510 ).
Where an order is made upon the appellant's default, review is limited to matters which were the subject of contest below (see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; Matter of Paulino v. Camacho, 36 A.D.3d 821, 828 N.Y.S.2d 496 ; Brown v. Data Communications, 236 A.D.2d 499, 653 N.Y.S.2d 693 ). Accordingly, in this case, review of the amended order granting the mother's petition for sole legal and physical custody of the parties' child is limited to the denial of the father's request for an adjournment or for leave to appear in court telephonically (see Tun v. Aw, 10 A.D.3d 651, 652, 782 N.Y.S.2d 96 ; Brown v. Data Communications, 236 A.D.2d at 499, 653 N.Y.S.2d 693 ).
Whether to grant a party's request for an adjournment "is a matter resting within the sound discretion of the trial court" ( Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; see Matter of Vidal v. Mintzer, 309 A.D.2d 756, 758, 765 N.Y.S.2d 385 ). Here, the Family Court did not improvidently exercise its discretion in denying the father's request for an adjournment or for leave to appear in court telephonically (see Matter of Krische v. Sloan, 100 A.D.3d 758, 953 N.Y.S.2d 876 ).
DILLON, J.P., ROMAN, DUFFY and BARROS, JJ., concur.