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SUPPORT MAGISTRATE SHOULD NOT HAVE ALLOWED FATHER’S ATTORNEY TO WITHDRAW WITHOUT NOTICE TO FATHER AND SHOULD NOT HAVE PROCEEDED IN FATHER’S ABSENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Support Magistrate’s findings should not have been confirmed because the Support Magistrate allowed father’s attorney to withdraw without notice to father and proceeded in father’s absence:

… [T]he Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” … . Here, the father’s attorney did not make a written motion to withdraw; rather, counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321 (b) (2) renders the Support Magistrate’s finding of default improper … . Matter of Gonzalez v Bebee, 2019 NY Slip Op 08027, Fourth Dept 11-8-19

 

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