State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 11, 2014 516539
________________________________
In the Matter of DEBRA A.
DESHANE et al.,
Respondents,
v
MEMORANDUM AND ORDER
COREY P. DESHANE,
Respondent,
and
CRYSTAL A. ARQUITTE,
Appellant.
________________________________
Calendar Date: October 8, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
__________
John A. Cirando, Syracuse, for appellant.
G. Scott Walling, Schenectady, attorney for the children.
__________
Lynch, J.
Appeal from an order of the Family Court of St. Lawrence
County (Morris, J.), entered March 12, 2013, which granted
petitioners' application, in a proceeding pursuant to Family Ct
Act article 6, for custody of the subject children.
Petitioners are the paternal grandparents of five minor
children (born in 2002, 2005, 2006, 2008 and 2009), whose parents
are respondent Crystal A. Arquitte (hereinafter respondent) and
-2- 516539
respondent Corey P. Deshane.1 In September 2012, petitioners
commenced this proceeding seeking custody of all five children.
At that time, the two oldest children and the youngest child
resided with petitioners, while the other two children had
relocated with respondent in August 2012 to an area near the City
of Syracuse, Onondaga County. The proceedings were adjourned
several times because petitioners lacked any contact information
for respondent. Eventually, respondent was personally served
with a copy of the petition on December 17, 2012 at an address in
the Village of Liverpool, Onondaga County. When respondent
failed to appear at a scheduled January 4, 2013 return date, the
matter was rescheduled for January 28, 2013, with notice sent to
the Liverpool address. On January 25, 2013, respondent submitted
an application to appear by phone listing the Liverpool address
on her application.2 When respondent failed to appear on January
28, 2013, Family Court rescheduled the matter for a hearing on
March 8, 2013, sending a further notice to the Liverpool address
and advising that a failure to appear would forfeit her right to
participate. The court also informed respondent of her right to
counsel and included a Public Defender application. On February
6, 2013, counsel from the conflict Public Defender's office filed
a notice of appearance on respondent's behalf. Respondent also
faxed a further note to the court on February 13, 2013 seeking to
appear by phone for a February 19, 2013 support proceeding. On
March 8, 2013, respondent's counsel appeared, but provided no
explanation whatsoever as to the whereabouts of her absent client
and failed to participate in the hearing. The hearing ensued
and, upon the consent of the father and the attorney for the
children, the court granted the petition. Respondent now
1
The attorney for the child advises that the father passed
away during the pendency of this appeal. This proceeding may
continue (CPLR 1015 [b]; see Adamec v Mueller, 94 AD3d 1212, 1212
n 2 [2012], lv denied 20 NY3d 856 [2013]).
2
Although the application bears the caption for a pending
Family Ct Act article 4 proceeding, it lists a January 28, 2013
appearance. Since the application was incomplete, Family Court
left a message requesting a return call, but respondent did not
respond.
-3- 516539
appeals.
Under the scenario described above, we conclude that Family
Court properly deemed respondent in default, notwithstanding the
appearance of counsel on her behalf (see Matter of Scott KK. v
Patricia LL., 110 AD3d 1260, 1261 [2013], lv dismissed and denied
22 NY3d 1054 [2014]; Matter of Derek P. v Doris Q., 92 AD3d 1103,
1105 [2012], lv dismissed and denied 19 NY3d 831 [2012]; Matter
of Naomi KK. v Natasha LL., 80 AD3d 834, 835 [2011], lv denied 16
NY3d 711 [2011]). We are satisfied that respondent was duly
notified of the March 8, 2013 hearing, and she was extended every
accommodation by the court to participate. We also note
petitioner Debra A. Deshane's testimony that respondent
telephoned her a few days before the hearing advising that she
would not attend. Having defaulted, respondent is precluded from
appealing the ensuing order (see Matter of Derek P. v Doris Q.,
92 AD3d at 1105). The proper procedure would be for respondent
to move to vacate the default and, if denied, appeal from that
order (see Matter of Scott KK. v Patrice LL., 110 AD3d at 1261).
As such, the merits of the appeal are not before us.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court