Jackson v. Lee

96 A.D.2d 760, 465 N.Y.S.2d 314, 1983 N.Y. App. Div. LEXIS 19352

Opinion

— Order unanimously reversed, without costs, and matter remitted to Monroe County Family Court for an immediate hearing before another Judge. Memorandum: The court erred in proceeding to trial in this custody matter over respondent’s attorney’s objection and in respondent’s absence. Inasmuch as this hearing involved the health, safety and welfare of a young child, it was an abuse of discretion not to grant a reasonable continuance (Matter of Tanya G., 79 AD2d 881; see CPLR 4402). Moreover, the attorney’s excusable unpreparedness deprived respondent of the meaningful representation to which she is entitled (Matter of Ella B., 30 NY2d 352; Matter of Shalom S., 88 AD2d 936). Petitioner’s witnesses were not cross-examined, and the record lacks information critical to a proper custody determination. (Appeal from order of Monroe County Family Court, Bonadio, J. — custody.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Boomer, JJ.