Menaldino v. Johnson

Appellate Division of the Supreme Court of New York

Menaldino v. Johnson

162 A.D.2d 758, 557 N.Y.S.2d 671, 1990 N.Y. App. Div. LEXIS 7242

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

DecidedJune 14, 1990

StatusPublished

Cited by4 cases

This text of 162 A.D.2d 758 (Menaldino v. Johnson) 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

Menaldino v. Johnson, 162 A.D.2d 758, 557 N.Y.S.2d 671, 1990 N.Y. App. Div. LEXIS 7242 (N.Y. Ct. App. 1990).

Pincite

Opinion

Mahoney, P. J.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered November 10, 1988, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for support of respondents’ child.

In 1988, respondents’ son was placed in petitioner’s custody as a person in need of supervision. Petitioner sought an order directing respondents to pay for support of their child during the period of custody. At a preliminary hearing, a temporary order of support was entered and a trial date set. The trial was adjourned until September 30, 1988, at which time respondents did not appear. The Hearing Examiner entered a default order directing respondents to pay $848 per week for support. Respondents filed written objections to the support order and Family Court dismissed those objections. Respondents appeal.

Respondents’ failure to appear for the hearing resulted in a default. It is well settled that defaults are subject to challenge not by direct appeal but by acting pursuant to CPLR 317 or 5015. Since respondents have not pursued these avenues, they are not entitled to relief on this appeal (see, Matter of Wideman v Murley, 155 AD2d 841). Contrary to respondents’ suggestion, their letter to Family Court dated September 26, 1988 cannot be read as a request for an adjournment.

Appeal dismissed, without costs. Mahoney, P. J., Kane, Yesawich, Jr., Levine and Mercure, JJ., concur.

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Mahoney, P. J.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered November 10, 1988, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for support of respondents’ child.

In 1988, respondents’ son was placed in petitioner’s custody as a person in need of supervision. Petitioner sought an order directing respondents to pay for support of their child during the period of custody. At a preliminary hearing, a temporary order of support was entered and a trial date set. The trial was adjourned until September 30, 1988, at which time respondents did not appear. The Hearing Examiner entered a default order directing respondents to pay $848 per week for support. Respondents filed written objections to the support order and Family Court dismissed those objections. Respondents appeal.

Respondents’ failure to appear for the hearing resulted in a default. It is well settled that defaults are subject to challenge not by direct appeal but by acting pursuant to CPLR 317 or 5015. Since respondents have not pursued these avenues, they are not entitled to relief on this appeal (see, Matter of Wideman v Murley, 155 AD2d 841). Contrary to respondents’ suggestion, their letter to Family Court dated September 26, 1988 cannot be read as a request for an adjournment.

Appeal dismissed, without costs. Mahoney, P. J., Kane, Yesawich, Jr., Levine and Mercure, JJ., concur.

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Bluebook (online)

162 A.D.2d 758, 557 N.Y.S.2d 671, 1990 N.Y. App. Div. LEXIS 7242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menaldino-v-johnson-nyappdiv-1990.

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