In re Eddie J.

273 A.D.2d 239, 709 N.Y.S.2d 439, 2000 N.Y. App. Div. LEXIS 6297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2000
• Status: Published

Opinion

In a neglect proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of the Family Court, Queens County (Lubow, J.), dated December 10, 1997, which denied her application pursuant to Family Court Act § 1028 for return of her two children temporarily removed from her custody, and (2) a fact-finding order of the same court, dated May 5, 1998, which, upon her default in appearing at the fact-finding hearing, found that she neglected the subject children.

Ordered that the appeal from the order dated December 10, 1997, is dismissed as academic, without costs or disbursements; and it is further,

Ordered that the appeal from the order dated May 5, 1998, is dismissed, without costs or disbursements.

The appeal from the order dated December 10, 1997, was rendered academic by the subsequent fact-finding order dated May 5, 1998 (see, Matter of Philip D. S. v Francine B., 265 AD2d 212; Matter of Rasheeda L., 264 AD2d 649; Matter of Meldoy B., 234 AD2d 1005; Matter of Terrell H., 197 AD2d 372, 373; Matter of Toni “WW”, 52 AD2d 108, 111).

Since the fact-finding order dated May 5, 1998, was entered upon the default of the mother in appearing at the fact-finding hearing, the finding of neglect cannot be reviewed because no appeal lies from an order entered on the default of the appealing party (see, CPLR 5511; Matter of Chavi S., 269 AD2d 454; Matter of Vanessa M., 263 AD2d 542). O’Brien, J. P., Joy, Luciano and Schmidt, JJ., concur.