Wiley v. Musabyemariya

• Decision Date: 18 June 2014
• Parties: In the Matter of Martin WILEY, petitioner, v. Epiphanie MUSABYEMARIYA, respondent. (Proceeding No. 1) In the Matter of Epiphanie Musabyemariya, respondent, v. Martin Wiley, appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 898
988 N.Y.S.2d 259
2014 N.Y. Slip Op. 04501

In the Matter of Martin WILEY, petitioner,
v.
Epiphanie MUSABYEMARIYA, respondent. (Proceeding No. 1)
In the Matter of Epiphanie Musabyemariya, respondent,
v.
Martin Wiley, appellant. (Proceeding No. 2).

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

June 18, 2014.

[988 N.Y.S.2d 260]

Arza R. Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant.

Nancy Tremarzo, Poughkeepsie, N.Y., for respondent.

Michael J. O'Connor, Poughkeepsie, N.Y., attorney for the child.

RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

In two related child custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County (Watson, J.), dated February 22, 2013, as, after a trial, granted that branch of the mother's petition which was, in effect, to award the father only supervised visitation with the subject child, limited to four hours on alternate Saturdays.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties are the parents of the subject child, who was born September 14, 2009, and diagnosed, since the commencement of these proceedings, with autism. Both parties petitioned for custody. Prior to trial on the respective petitions, the father had supervised visitation with the child, which was increased on January 30, 2013, to eight hours. On February 7, 2013, a trial was scheduled to begin after approximately one year of adjournments. Before the trial commenced, the father's attorney stated that the father wished to discharge him. The father requested that the Family Court assign him a new attorney, stating that for “medical reasons,” he

[988 N.Y.S.2d 261]

could not continue to be represented by this attorney. When the court then noted that the matter was a year old and needed to get resolved “today,” the father again stated that he was requesting a new attorney for “medical reasons.” As the father refused to say anything more, the court proceeded with the trial.

Upon the conclusion of the mother's case, in which she was the sole witness, the court dismissed the father's petition and granted the mother's petition for sole custody. Further, because of concerns raised by the father's behavior in dismissing his attorney immediately before trial, and then refusing to participate in the trial, the court reduced his visitation, reverting to the previous visitation schedule of four hours on alternate weekends.

Contrary to the father's contentions, he was not entitled to a 30–day stay of the proceedings, nor did the Family Court improvidently exercise its discretion in refusing to assign him a new attorney. “As a general rule, CPLR 321(c) requires that there be a 30–day stay of all proceedings after counsel is permitted to withdraw over the client's objection ... Where, however, the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without such a stay” ( Sarlo–Pinzur v. Pinzur, 59 A.D.3d 607, 608, 874 N.Y.S.2d 499 [internal quotation marks and citations omitted][emphasis added] ). Thus, a party is not entitled to a stay pursuant to CPLR 321(c) “where a party voluntarily discharges his attorney” ( Levine v. New York, 111 A.D.2d 785, 788, 490 N.Y.S.2d 533;see Graco Constr. Corp. v. Eves, 232 A.D.2d 370, 370–371, 648 N.Y.S.2d 322;cf. Albert v. Albert, 309 A.D.2d 884, 766 N.Y.S.2d 362). Here, the father was not entitled to a stay since he voluntarily discharged his attorney ( see Graco Constr....