In re Liz S.

286 A.D.2d 769, 730 N.Y.S.2d 742, 2001 N.Y. App. Div. LEXIS 8682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 2001
• Status: Published

Opinion

—In a child protective proceeding pursuant to Family Court Act article 10, the mother, Irene L., appeals from (1) three fact-finding and dispositional orders (one paper) of the Family Court, Kings County (Weinstein, J.), all dated August 16, 1999 (one as to each child), which, upon her default in appearing at the fact-finding and dispositional hearing, found that her children had been abused and placed them in her custody under the supervision of the petitioner Administration for Children’s Services, and (2) an order of the same court, dated September 21, 1999, which denied her motion to vacate the three fact-finding and dispositional orders.

Ordered the appeals from the three fact-finding and dispositional orders are dismissed, without costs or disbursements, as no appeals lie from orders made upon the default of the appealing party (see, CPLR 5511); and it is further,

Ordered that the order dated September 21, 1999, is reversed, on the law, without costs or disbursements, the appellant’s motion to vacate her default in appearing at the fact-finding and dispositional hearing is granted, the three fact-finding and dispositional orders dated August 16, 1999, are vacated insofar as they relate to her, and the matter is remitted to the Family Court, Kings County, for a new fact-finding and dispositional hearing with respect to those allegations of the petition which are asserted against the appellant.

The Family Court erred in denying the appellant’s request to reopen the hearing since her failure to appear on time was not willful (see, Family Ct Act § 1042; Matter of Mursol B., 266 AD2d 76; Matter of Tesema H., 227 AD2d 122; Matter of Mark M., 196 AD2d 196, 200; Matter of Latida B., 156 AD2d 681). Goldstein, J. P., McGinity, H. Miller and Townes, JJ., concur.