Opinion
November 16, 1999
Kenneth M. Tuccillo, for Respondent-Appellant,
Andrea Peyser, for Petitioner-Respondent.
WILLIAMS, J.P., MAZZARELLI, RUBIN, SAXE, BUCKLEY, JJ.
Appeal from order of disposition, Family Court, Bronx County (Bruce Kaplan, J.), entered on or about July 14, 1997, which committed guardianship and custody to respondent father Irving B., following a fact-finding determination of neglect as to both parents and of abuse as to respondent father, and order, same court and Justice, entered on or about May 28, 1997, which denied appellant mother's motion to vacate her default, unanimously dismissed, without costs.
The Family Court's order denying respondent's request to reopen the hearing was error in view of the overwhelming evidence which showed respondent did not wilfully default. She was present at all of the numerous proceedings that she was required to attend except the hearing at issue (Matter of Tesema H., 227 A.D.2d 122; Family Ct. Act §§ 1042 and 1028(a); see, Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct. Act § 1042, p 119; Matter of Yem, 54 A.D.2d 673, revd on other grounds, 54 N.Y.2d 824; see also, Matter of Ana Maria Q., 52 A.D.2d 607 and Matter of Laticia B., 156 A.D.2d 681). In this dispositional hearing, it was error for the Family Court to base its ruling solely on the assertions of counsel and the caseworker rather than conduct an appropriate inquiry into the necessary and relevant facts (see, Family Ct. Act §§ 1046(c) and 1055(b)(ii) and Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct. Act § 1055, p 269; see also, Matter of Brian W., 199 A.D.2d 1021, lv denied 86 N.Y.2d 711; Matter of Barbara R., 66 A.D.2d 800; Matter of Hanson, 51 A.D.2d 696).
The relief sought by appellant mother on this appeal is a remand for a hearing on the issue of custody. However, the pending custody action brought by appellant against respondent father in Family Court involves the same issue, and this appeal is thus rendered academic. We express no view regarding the merits of the pending matter.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.