Smith v. Richards

286 A.D.2d 393, 728 N.Y.S.2d 713, 2001 N.Y. App. Div. LEXIS 8012

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 2001
• Status: Published

Opinion

—In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Se-gal, J.), dated July 14, 1999, which, upon her default in appearing at a hearing, awarded custody of the parties’ daughter to the father.

Ordered that the appeal is dismissed, without costs or disbursements.

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).

Since the appeal is dismissed, the application of the appellant’s assigned counsel to be relieved on the ground that there are no nonfrivolous issues which could be raised on appeal is academic (see, Matter of Garcia v Carballo, 277 AD2d 453). S. Miller, J. P., H. Miller, Schmidt and Cozier, JJ., concur.