Opinion
January 27, 1994
Appeal from the Family Court of Broome County (Ray, J.).
Respondent Jack X. (hereinafter respondent), the father of two children determined to have been permanently neglected, appeals the order committing their guardianship and custody to petitioner. We note that the order appealed from was entered upon respondent's default in appearing at the fact-finding and dispositional hearings, and it is well settled that a party cannot appeal from an order entered upon default (see, Matter of Robert F., 200 A.D.2d 899 [decided herewith]; Matter of Zagary George Bayne G., 185 A.D.2d 320, 322, lv denied 80 N.Y.2d 760; Matter of Jones, 128 A.D.2d 403, 404; see also, CPLR 5511; Family Ct Act § 165). The proper procedure is to move to vacate the default (see, CPLR 5015 [a]; Family Ct Act § 165; Matter of Luis R., 184 A.D.2d 1012; Matter of Celeste M., 180 A.D.2d 437, 438) and, if necessary, appeal from the denial of that motion (see, Matter of Mitchell v. Morris, 177 A.D.2d 579).
Cardona, P.J., Mikoll and Weiss, JJ., concur. Ordered that the appeal is dismissed, without costs.