Smith v. Bullock

202 A.D.3d 697

158 N.Y.S.3d 606 (Mem)

In the Matter of Judith SMITH, respondent,

v.James BULLOCK, appellant.

(Proceeding No. 1)

In the Matter of James Bullock, appellant,

v.Judith Smith, respondent.

(Proceeding No. 2)

2021–01974

Docket Nos. V-00976-15, V-00659-16

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

Argued—January 10, 2022

February 2, 2022

Paul W. Matthews, Forest Hills, NY, for appellant.

Tammi D. Pere, Jamaica, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Janet Neustaetter and Eva D. Stein of counsel), attorney for the child.

VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated February 11, 2021. The order granted the petition of the nonparent Judith Smith for custody of the subject child and denied the father's petition for custody of the child.

ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies from an order that was entered upon the default of the appealing party (see CPLR 5511 ), except with respect to matters which were the subject of contest (see CPLR 5511 ; Matter of Marchella P. [Loretta B.-B.], 137 A.D.3d 1286, 1287, 28 N.Y.S.3d 413 ); and it is further,

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

The record demonstrates that the father's disruptive behavior over the course of these proceedings, and specifically, during the conference on January 27, 2021, was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom. Therefore, the court acted properly in excluding the father from further participation in the proceedings, as the father's conduct was sufficient to constitute a knowing and willful default (see Matter of Bartosz B. [Andrzej B.], 187 A.D.3d 894, 896, 134 N.Y.S.3d 45 ; Matter of Nyree S. v. Gregory C., 99 A.D.3d 561, 562, 951 N.Y.S.2d 874 ; Matter of Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394 ; Matter of McConnell v. Montagriff, 233 A.D.2d 512, 650 N.Y.S.2d 768 ).

The determinations made after the father was found in default are not subject to direct appellate review (see CPLR 5511 ; Matter of Bartosz B. [Andrzej B.], 187 A.D.3d at 896, 134 N.Y.S.3d 45 ; Matter of Zelaya v. Cervas, 178 A.D.3d 710, 111 N.Y.S.3d 237 ). We note that the appellant did not move to vacate...