In re David W.

Appellate Division of the Supreme Court of New York

In re David W.

290 A.D.2d 357, 736 N.Y.S.2d 227, 2002 N.Y. App. Div. LEXIS 529

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 2002

StatusPublished

Cited by7 cases

This text of 290 A.D.2d 357 (In re David W.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re David W., 290 A.D.2d 357, 736 N.Y.S.2d 227, 2002 N.Y. App. Div. LEXIS 529 (N.Y. Ct. App. 2002).

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Opinion

Appeals from orders of disposition, Family Court, Bronx County (Cira Martinez, J.), entered on or about April 6, 1999, which, inter alia, upon respondent-appellant father’s default, found that appellant had permanently neglected the subject children and terminated his parental rights with respect to said children, committing custody and guardianship of the children to petitioner agency and the Commissioner of the Administration for Children’s Services of the City of New York for purposes of adoption, unanimously dismissed, without costs.

The orders from, which appellant purports to appeal were entered upon his default and accordingly are not appealable by him (see, CPLR 5511; Matter of Ebony Monique A., 265 AD2d 171), and while appellant argues that the denial of his motion to vacate his default constituted error, the challenged denial of vacatur was never reduced to an appealable order and thus is not properly before us (see, CPLR 5512 [a]; Matter of Juan Alejandro R., 221 AD2d 183). Were the challenged denial of vacatur reviewable, we would find no basis for disturbing it. Contrary to appellant’s contention, his right to be present at the fact-finding and dispositional hearings was not absolute (see, Matter of Raymond Dean L., 109 AD2d 87) and his presence was properly dispensed with since his failures to appear at these hearings were only the latest of numerous absences by him at appointments and hearings scheduled in connection with these neglect proceedings, the long pendency of which has not been in the children’s interest (see, Matter of James Carton K., 245 AD2d 374, lv denied 91 NY2d 809). Nor would we find that Family Court’s denial of vacatur constituted an improper exercise of discretion. Appellant made no showing of a reasonable excuse for his default in appearing at the hearings and evidently has no meritorious defense to the termination petition (see, Matter of “Male” Jones, 128 AD2d 403). Concur— Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.

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Appeals from orders of disposition, Family Court, Bronx County (Cira Martinez, J.), entered on or about April 6, 1999, which, inter alia, upon respondent-appellant father’s default, found that appellant had permanently neglected the subject children and terminated his parental rights with respect to said children, committing custody and guardianship of the children to petitioner agency and the Commissioner of the Administration for Children’s Services of the City of New York for purposes of adoption, unanimously dismissed, without costs.

The orders from, which appellant purports to appeal were entered upon his default and accordingly are not appealable by him (see, CPLR 5511; Matter of Ebony Monique A., 265 AD2d 171), and while appellant argues that the denial of his motion to vacate his default constituted error, the challenged denial of vacatur was never reduced to an appealable order and thus is not properly before us (see, CPLR 5512 [a]; Matter of Juan Alejandro R., 221 AD2d 183). Were the challenged denial of vacatur reviewable, we would find no basis for disturbing it. Contrary to appellant’s contention, his right to be present at the fact-finding and dispositional hearings was not absolute (see, Matter of Raymond Dean L., 109 AD2d 87) and his presence was properly dispensed with since his failures to appear at these hearings were only the latest of numerous absences by him at appointments and hearings scheduled in connection with these neglect proceedings, the long pendency of which has not been in the children’s interest (see, Matter of James Carton K., 245 AD2d 374, lv denied 91 NY2d 809). Nor would we find that Family Court’s denial of vacatur constituted an improper exercise of discretion. Appellant made no showing of a reasonable excuse for his default in appearing at the hearings and evidently has no meritorious defense to the termination petition (see, Matter of “Male” Jones, 128 AD2d 403). Concur— Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.

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290 A.D.2d 357, 736 N.Y.S.2d 227, 2002 N.Y. App. Div. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-david-w-nyappdiv-2002.

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