Ferratella v. Thomas
| Decision Date | 28 June 2019 |
| Docket Number | 296,CAF 18–00883 |
| Citation | 173 A.D.3d 1834,105 N.Y.S.3d 664 |
| Parties | In the Matter of Daniel Lee FERRATELLA, Petitioner–Respondent, v. Angela Beers THOMAS, Respondent–Appellant. |
| Court | New York Supreme Court — Appellate Division |
173 A.D.3d 1834
105 N.Y.S.3d 664
In the Matter of Daniel Lee FERRATELLA, Petitioner–Respondent,
v.
Angela Beers THOMAS, Respondent–Appellant.
296
CAF 18–00883
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: June 28, 2019
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHELLE A. COOKE, CORNING, FOR PETITIONER–RESPONDENT.
BRITTANY L. LINDER, BATH, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified in the interest of justice and on the law by vacating that part finding that respondent willfully violated the order of protection when she left petitioner a voicemail and vacating the 30–day suspended jail sentence and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 8, respondent mother appeals from
an order that, inter alia, imposed a 30–day suspended jail sentence based upon a determination after a hearing that she willfully violated an order of protection, dated September 26, 2017. In rendering its determination, Family Court found that the mother violated the order of protection on November 4, 2017, when she parked her vehicle outside petitioner father's residence with her engine off for approximately 30 minutes. The court further found that the mother had violated the order of protection when she left a voicemail for the father regarding a nonemergent issue. The court imposed the suspended jail sentence on the basis of both of those violations.
Contrary to the mother's contention, the court did not abuse its discretion in denying her attorney's request for an adjournment of the fact-finding hearing after the mother failed to appear. It is well settled that "[t]he grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( Matter of Steven B. , 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ; see Matter of Clausell v. Salame , 156 A.D.3d 1401, 1401–1402, 65 N.Y.S.3d 873 [4th Dept. 2017] ), and here the mother's attorney "failed to demonstrate that the need for the adjournment ... was not based on a lack of due diligence on the part...
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