Nasser ex rel. Williams v. Abraham

Appellate Division of the Supreme Court of New York

Nasser ex rel. Williams v. Abraham

105 A.D.2d 1096, 482 N.Y.S.2d 161, 1984 N.Y. App. Div. LEXIS 21184

Appellate Division of the Supreme Court of the State of New York·Decided November 7, 1984·No. Appeal No. 1·Published·Cited by 1 cases

Opinion

Order unanimously reversed, without costs, and petition reinstated. Memorandum: Family Court erred in dismissing two support petitions on the ground of respondent’s failure to appear at the hearing (see, generally, Family Ct Act, § 441; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 441). Instead of rewarding respondent for his nonappearance by. dismissing the proceedings, Family Court could have granted an adjournment as requested by petitioner, issued a warrant (Family Ct Act, §§153, 428) or, if appropriate, found respondent to be in default and proceeded with an inquest (CPLR 3215, subd [a]; see Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 428; cf. O’Toole v O’Toole, 88 AD2d 1011). (Appeal from order of Oneida County Family Court, Pomilio, J. — dismiss petition.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.

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Order unanimously reversed, without costs, and petition reinstated. Memorandum: Family Court erred in dismissing two support petitions on the ground of respondent’s failure to appear at the hearing (see, generally, Family Ct Act, § 441; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 441). Instead of rewarding respondent for his nonappearance by. dismissing the proceedings, Family Court could have granted an adjournment as requested by petitioner, issued a warrant (Family Ct Act, §§153, 428) or, if appropriate, found respondent to be in default and proceeded with an inquest (CPLR 3215, subd [a]; see Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 428; cf. O’Toole v O’Toole, 88 AD2d 1011). (Appeal from order of Oneida County Family Court, Pomilio, J. — dismiss petition.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.

Nasser ex rel. Williams v. Abraham, 105 A.D.2d 1096, 482 N.Y.S.2d 161, 1984 N.Y. App. Div. LEXIS 21184 (N.Y. Ct. App. 1984).

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