Opinion
783 CAF 17–00730
06-29-2018
In the Matter of Ahmed Z. ABDO, Petitioner–Respondent, v. Malloche A. AHMED, Respondent–Appellant.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT–APPELLANT. CHARLES J. GREENBERG, AMHERST, FOR PETITIONER–RESPONDENT. MICHELE A. BROWN, BUFFALO, ATTORNEY FOR THE CHILDREN.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT–APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER–RESPONDENT.
MICHELE A. BROWN, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the phrase "on default" in the caption and the phrase "and Respondent having failed to appear" preceding the ordering paragraphs, and as modified the order is affirmed without costs.
Memorandum: Respondent mother appeals from an order that granted sole custody of the subject children to petitioner father with supervised visitation to the mother. We agree with the mother that Family Court erred in entering the order upon the mother's default based on her failure to appear in court. The record establishes that the mother "was represented by counsel, and we have previously determined that, ‘[w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded’ " ( Matter of Pollard v. Pollard, 63 A.D.3d 1628, 1628, 881 N.Y.S.2d 564 [4th Dept. 2009] ; see Matter of Kwasi S., 221 A.D.2d 1029, 1030, 634 N.Y.S.2d 579 [4th Dept. 1995] ). We therefore modify the order accordingly.
The mother's contention that she did not receive notice of the hearing is not preserved for our review and, in any event, the record establishes that the notice was properly served upon the mother's attorney, who represented the mother at the hearing (see generally Neupert v. Neupert, 145 A.D.3d 1643, 1643, 44 N.Y.S.3d 836 [4th Dept. 2016] ).
Finally, we conclude that the court did not err in awarding the father sole custody of the children with supervised visitation to the mother. "A custody determination by the trial court must be accorded great deference ... and should not be disturbed where ... it is supported by a sound and substantial basis in the record" ( Matter of Green v. Mitchell, 266 A.D.2d 884, 884, 697 N.Y.S.2d 899 [4th Dept. 1999] ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Here, the court's determination is supported by a sound and substantial basis in the record.