In re Ashley X.

200 A.D.2d 911, 608 N.Y.S.2d 886, 1994 N.Y. App. Div. LEXIS 606

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1994
• Status: Published

Opinion

—Mercure, J.

Appeal from an order of the Family Court of Broome County (Ray, J.), entered October 1, 1992, which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondents’ children to be permanently neglected and terminated their parental rights.

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 AD2d 899 [decided herewith]; Matter of Zagary George Bayne G., 185 AD2d 320, 322, lv denied 80 NY2d 760; Matter of Jones, 128 AD2d 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 AD2d 1012; Matter of Celeste M., 180 AD2d 437, 438) and, if necessary, appeal from the denial of that motion (see, Matter of Mitchell v Morris, 177 AD2d 579).

Cardona, P. J., Mikoll and Weiss, JJ., concur. Ordered that the appeal is dismissed, without costs.