Majuk v. Carbone

• Decision Date: 12 June 2015
• Docket Number: 618 CAF 13-02017
• Citation: 2015 N.Y. Slip Op. 04981,12 N.Y.S.3d 410,129 A.D.3d 1485
• Parties: In the Matter of Barbara MAJUK, Petitioner–Respondent, v. Anthony CARBONE, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1485

12 N.Y.S.3d 410

2015 N.Y. Slip Op. 04981

In the Matter of Barbara MAJUK, Petitioner–Respondent

v.Anthony CARBONE, Respondent–Appellant.

618 CAF 13-02017

Supreme Court, Appellate Division, Fourth Department, New York.

June 12, 2015.

Jennifer M. Lorenz, Lancaster, for Respondent–Appellant.

Elizabeth Ciambrone, Buffalo, for Petitioner–Respondent.

Joseph C. Bania, Attorney for the Child, Buffalo.

PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, and WHALEN, JJ.

OpinionMEMORANDUM:

Petitioner mother commenced this proceeding pursuant to Family Court Act article 6, and she subsequently filed an amended petition seeking an order directing that respondent father's visitation with the subject child be supervised by an appropriate agency. The father appeals from an order that sua sponte directed that he was to have no further contact or visitation with the child. We conclude that Family Court erred in sua sponte granting relief that was not requested by the parties or the Attorney for the Child (see Matter of Myers v. Markey, 74 A.D.3d 1344, 1345, 904 N.Y.S.2d 184 ; see also Matter of Joseph P., 106 A.D.3d 1548, 1551, 966 N.Y.S.2d 622 ; see generally Kernan v. Williams [Appeal No. 2], 125 A.D.3d 1440, 1441, 3 N.Y.S.3d 806, lv. denied 128 A.D.3d 1426, 6 N.Y.3d 926 [2015] ). We therefore reverse and remit the matter to Family Court for further proceedings on the amended petition.

Initially, insofar as the brief of the mother may be read to advance the contention that the father may not appeal because he defaulted in the hearing court by failing to appear for a scheduled court appearance, we reject that contention. Although no appeal lies from an order entered on default (see generally Hines v. Hines, 125 A.D.2d 946, 946, 510 N.Y.S.2d 344 ), the record reflects that the father's attorney appeared on his behalf, and it is well settled that “ ‘[a] party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” (Matter of Manning v. Sobotka, 107 A.D.3d 1638, 1639, 969 N.Y.S.2d 627 ; see Matter of Avdic v. Avdic, 125 A.D.3d 1534, 1536, 4 N.Y.S.3d 792 ; Matter of Bradley M.M. [Michael M.-Cindy M.], 98 A.D.3d 1257, 1258, 951 N.Y.S.2d 604 ; Matter of Isaiah H., 61 A.D.3d 1372, 1373, 877 N.Y.S.2d 786 ).

Next, we note the well-settled proposition that “ ‘[n]o appeal lies as of right from an order [that] does not decide a motion made on notice’ ” (Matter of Mary L.R. v. Vernon B., 48 A.D.3d 1088, 1088, 849 N.Y.S.2d 816, lv. denied10 N.Y.3d 710, 859 N.Y.S.2d 396, 889 N.E.2d 83 ; see Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 ; Matter of White v. Wilcox, 109 A.D.3d 1145, 1146, 973 N.Y.S.2d 498, lv. dismissed in part and denied in part 22 N.Y.3d 1085, 1086, 981 N.Y.S.2d 668, 4 N.E.3d 970 ). Here, although the father did not seek leave to appeal from the court's sua sponte determination to permanently deprive him of all contact and visitation with his child, we exercise our discretion to treat his notice of appeal as an application for leave to appeal, and we grant the application in the interest of justice (see CPLR 5701[c] ; see e.g. Vogelgesang v. Vogelgesang, 71 A.D.3d 1132, 1133, 899 N.Y.S.2d 272 ; Matter of Walker v. Bowman, 70 A.D.3d 1323, 1323–1324, 893 N.Y.S.2d 775 ).

With respect to the merits, we agree with the father that the order must be reversed (see Myers, 74 A.D.3d at 1345, 904 N.Y.S.2d 184 ). The amended petition sought supervised visitation, but the court permanently terminated the father's access to the child, instead. The record establishes that the parties had...