Matter of Hotaki v Liriano, 2024 NY Slip Op 02818 [227 AD3d 997]
May 22, 2024
Appellate Division, Second Department
[*1]
In the Matter of Khushal Hotaki, Appellant,
v
Clara Liriano, Respondent.
Lauri Gennusa, Laurelton, NY, for appellant.
Nestor Soto, Astoria, NY, for respondent.
Emily Olshansky, Southhold, NY, attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Tamra Walker, J.), dated April 24, 2023. The order, upon the father’s failure to appear at a fact-finding hearing, dismissed the father’s petition to enforce an order of the same court (Ashley Black, Ct. Atty. Ref.) dated July 26, 2018, without prejudice.
Ordered that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the father’s attorney’s application for an adjournment of the fact-finding hearing ( see CPLR 5511); and it is further, Ordered that the order dated April 24, 2023, is affirmed insofar as reviewed, without costs or disbursements.
In an order dated July 26, 2018 (hereinafter the July 2018 order), the Family Court awarded the father certain parental access with the subject child. In January 2020, the father filed a petition to enforce the July 2018 order, alleging, inter alia, that the mother violated the order by preventing the child from communicating with the father. During proceedings held on November 21, 2022, in which the parties appeared in court telephonically, the court scheduled a fact-finding hearing to commence on April 24, 2023, and directed the parties to appear in person on that date. The father failed to appear in person on April 24, 2023, and instead appeared in court telephonically. In an order dated April 24, 2023 (hereinafter the April 2023 order), the court, upon the father’s failure to appear at the fact-finding hearing, dismissed the father’s petition without prejudice. The father appeals.
Contrary to the father’s contention, under the circumstances presented, the Family Court properly determined that the father’s failure to appear in person at the fact-finding hearing as required constituted a default ( see Matter of Reardon v Krause , 219 AD3d 1710 , 1711 [2023]; Matter of Iyana W. [Shamark W.] , 124 AD3d 418 , 418 [2015]; Matter of Jaquan Tieran B. [Latoya B.] , 105 AD3d 498 , 499 [2013]).
Although the April 2023 order was entered upon the father’s failure to appear at the [*2] fact-finding hearing, the denial of the father’s attorney’s application for an adjournment of the fact-finding hearing is reviewable because that request was the subject of contest below ( see Matter of Zowa D.P. [Jenia W.] , 190 AD3d 744 , 745 [2021]; Matter of Rivera v Diaz , 185 AD3d 695 , 696 [2020]; Matter of Sacks v Abraham , 114 AD3d 799 , 800 [2014]). The granting of an adjournment for any purpose rests in the sound discretion of the court, and its determination will not be disturbed absent an improvident exercise of that discretion ( see Matter of Zowa D.P. [Jenia W.] , 190 AD3d at 745; Matter of Rivera v Diaz , 185 AD3d at 696). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” ( Matter of Sicurella v Embro , 31 AD3d 651 , 651 [2006]). Here, the Family Court did not improvidently exercise its discretion in denying the father’s attorney’s application for an adjournment of the fact-finding hearing ( see Matter of Rivera v Diaz , 185 AD3d at 696; Matter of Sacks v Abraham , 114 AD3d at 800; Matter of Krische v Sloan , 100 AD3d 758 , 759 [2012]).
The parties’ remaining contentions are either without merit or not properly before this Court. Connolly, J.P., Wooten, Dowling and Love, JJ., concur..