Brown v. Brown

190 A.D.2d 668, 594 N.Y.S.2d 620, 1993 N.Y. App. Div. LEXIS 793

Opinion

— In a child custody proceeding, the appeal is from an order of the Family Court, Nassau County (De-Maro, J.), dated January 28, 1992, which, upon the appellant’s default in appearing for scheduled court dates, inter alia, directed that the appellant have no contact with her infant son.

Ordered that the appeal is dismissed, without costs or disbursements.

No appeal lies from an order made upon the default of the aggrieved party (see, CPLR 5511). The proper procedure would have been for the appellant to move to open her default and to vacate the order dated January 28, 1992, and if necessary, appeal from the denial of the motion to vacate the default (see, Grober v Busigo, 133 AD2d 389; Imor v Imor, 114 AD2d 552; Calvagno v Nationwide Mut. Fire Ins. Co., 110 AD2d 741). Bracken, J. P., Fiber, Ritter and Santucci, JJ., concur.