Silvestris v. Silvestris

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore BREITEL; BALENTE
Citation24 A.D.2d 247,265 N.Y.S.2d 173
Decision Date16 December 1965
Parties: Dorothy SILVESTRIS, Petitioner-Respondent, v. Frank SILVESTRIS, Respondent-Appellant. Supreme Court, Appellate Division, First Department

Page 173

265 N.Y.S.2d 173
24 A.D.2d 247
In the Matter of a proceeding for support under Article 4 of
the Family Court Act: Dorothy SILVESTRIS,
Petitioner-Respondent,
v.
Frank SILVESTRIS, Respondent-Appellant.
Supreme Court, Appellate Division, First Department.
Dec. 16, 1965.

Page 175

[24 A.D.2d 248] David N. Goldman, New York City, for appellant.

Bernard Burstein, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Leo A. Larkin, Corporation Counsel) for respondent.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER, and STEUER, JJ.

BALENTE, Justice.

This is an appeal from an order of the Family Court, Bronx County, directing appellant to pay $30 per week for the support of his eleven year old daughter.

Page 176

The proceeding was commenced in the Family Court, Greene County, where the petitioner and the daughter resided. Appellant, the father of the child, resided in Bronx County. The matter was transferred to the Family Court, Bronx County, pursuant to the provisions of the Uniform Support of Dependents Law (Art. 3-A of the Domestic Relations Law). Section 35(1) of The Domestic Relations Law provides that a support proceeding under the Uniform Act may be maintained where petitioner and respondent are residents of different counties in the same state. However, under Section 37(2), if the Court can acquire jurisdiction of the person of respondent under the existing laws of the state in which both parties reside 'such laws shall govern and control the procedure to be followed in such proceeding.' Since the Family Court may send process in any matter in which it has jurisdiction into any county of this State (Family Court Act, Sce. 154), the Family Court Act would govern and control the procedure to be followed in this proceeding. (See also Family Court Act, Sections 174 and 411.) Consequently, the validity of the order appealed from must be considered in relation to the procedural requirements of the Family Court Act.

Section 433 of the Family Court Act provides that upon the return of the summons in a support proceeding, the Court shall proceed to hear and determine the cause and that the respondent 'shall be informed of the contents of the petition, advised of his right to counsel, and shall be given opportunity to be heard and to present witnesses.' Unquestionably, appellant was informed of the contents of the petition. In fact, he admitted he was served with a copy of the petition.

So, too, it appears that at the commencement of the hearing, the Family Court Judge inquired if appellant was prepared to proceed or if he wanted 'time to get a lawyer'. Appellant elected to proceed pro se. The right to be advised of a right to counsel does not deprive a person of his right to elect to proceed [24 A.D.2d 249] without counsel. (See Adams v. U. S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.) Hence, there was in the instant proceeding a knowledgeable waiver of the right to counsel and an election by appellant to conduct his case pro se. To draw an adalogy with criminal prosecutions, there was an unqualified right of appellant to act as his own lawyer. (See United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965).)

It was only toward the conclusion of the hearing that appellant sought a postponement until he could obtain a lawyer. Having made an intelligent election at the commencement of the hearing to decline the aid of counsel, appellant could not, as a matter of right, thereafter interrupt and delay the hearing at a much later stage to demand legal assistance. (People v. Guber, 201 Misc. 852, 113 N.Y.S.2d 192, affd. 1 A.D.2d 876, 150 N.Y.S.2d 543; Matter of Connor, 16 Cal.2d...

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34 practice notes
  • Mosca v. Pensky
    • United States
    • United States State Supreme Court (New York)
    • January 19, 1973
    ...284, 29 N.Y.S.2d 1001; cf. Gumb v. Twenty-Third Street R. Co., 114 N.Y. 411, 414, 21 N.E. 993, 994; Mtr. of Silverstris v. Silverstris, 24 A.D.2d 247, 265 N.Y.S.2d 173; Douglas v. Latona, 61 Misc.2d 859, 306 N.Y.S.2d 992; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3017.01; 13 N.Y. Jur., Damage......
  • Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
    • United States
    • United States State Supreme Court (New York)
    • April 5, 1978
    ...of the amount of damages is not mandatory (Daukas v. Shearson, Hammill & Co., 26 A.D.2d 526, 270 N.Y.S.2d 760; Silvestris v. Silvestris, 24 A.D.2d 247, 250, 265 N.Y.S.2d 173, 177; Practice Commentaries, David D. Siegel, C. 3017:1). The amount of damage to plaintiff Gilman has been calculate......
  • Yonkosky v. Hicks, No. 04-CV-756S(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 19, 2005
    ...and (c) (McKinney 1991). Under New York caselaw, such "relief" need not specify the amount of damages sought. Silvestris v. Silvestris, 24 A.D.2d 247, 265 N.Y.S.2d 173, 178 (2d Dep't 1965). A defendant to a medical or dental malpractice action and municipal corporations, however, are permit......
  • Schneider v. Schneider
    • United States
    • New York Family Court
    • October 6, 1972
    ...previously indicated, this proceeding is transferred to the family court in Niagara County for a full hearing. Silvestris v. Silvestris, 24 A.D.2d 247, 265 N.Y.S.2d 173 (1st Dept. 1965). Accordingly, the Page 58 respondent's motion for an oral examination before trial is denied as is his pr......
  • Request a trial to view additional results
34 cases
  • Mosca v. Pensky
    • United States
    • United States State Supreme Court (New York)
    • January 19, 1973
    ...284, 29 N.Y.S.2d 1001; cf. Gumb v. Twenty-Third Street R. Co., 114 N.Y. 411, 414, 21 N.E. 993, 994; Mtr. of Silverstris v. Silverstris, 24 A.D.2d 247, 265 N.Y.S.2d 173; Douglas v. Latona, 61 Misc.2d 859, 306 N.Y.S.2d 992; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3017.01; 13 N.Y. Jur., Damage......
  • Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
    • United States
    • United States State Supreme Court (New York)
    • April 5, 1978
    ...of the amount of damages is not mandatory (Daukas v. Shearson, Hammill & Co., 26 A.D.2d 526, 270 N.Y.S.2d 760; Silvestris v. Silvestris, 24 A.D.2d 247, 250, 265 N.Y.S.2d 173, 177; Practice Commentaries, David D. Siegel, C. 3017:1). The amount of damage to plaintiff Gilman has been calculate......
  • Yonkosky v. Hicks, No. 04-CV-756S(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 19, 2005
    ...and (c) (McKinney 1991). Under New York caselaw, such "relief" need not specify the amount of damages sought. Silvestris v. Silvestris, 24 A.D.2d 247, 265 N.Y.S.2d 173, 178 (2d Dep't 1965). A defendant to a medical or dental malpractice action and municipal corporations, however, are permit......
  • Schneider v. Schneider
    • United States
    • New York Family Court
    • October 6, 1972
    ...previously indicated, this proceeding is transferred to the family court in Niagara County for a full hearing. Silvestris v. Silvestris, 24 A.D.2d 247, 265 N.Y.S.2d 173 (1st Dept. 1965). Accordingly, the Page 58 respondent's motion for an oral examination before trial is denied as is his pr......
  • Request a trial to view additional results

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