Layne v. Wyllie

277 A.D.2d 239, 715 N.Y.S.2d 652, 2000 N.Y. App. Div. LEXIS 11236

Opinion

—In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Rings County (Turbow, J.), dated March 4, 1999, which, upon his default in appearing, awarded custody to the mother.

Ordered that the appeal is dismissed, with costs.

No appeal lies from an order made upon the default of the appealing party (see, CPLR 5511; Matter of Geraldine Rose W., 196 AD2d 313; Matter of Zagary George Bayne G., 185 AD2d 320; Matter of Mitchell v Morris, 177 AD2d 579). The proper procedure is for that party to move to vacate his or her default and, if necessary, appeal from the order deciding that motion (see, Matter of Geraldine Rose W., supra; Matter of Mitchell v Morris, supra). Thompson, J. P., Luciano, Feuerstein and Schmidt, JJ., concur.