You are here: / / THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL...
, , , ,

THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined it was not demonstrated mother was informed of her counsel’s intent to withdraw from representing her before the judge conducted the permanency hearing in counsel’s and mother’s absence and found against her. The two-justice dissent argued no appeal lies from a default and mother’s recourse was to move to vacate the default pursuant of CPLR 5015(a):

It is well established that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel … . Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client … . Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney … .

Here, there is no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel … . Nor does the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal … . Matter of Richard TT. (Kara VV.), 2024 NY Slip Op 00215, Third Dept 1-18-24

Practice Point: There is no evidence mother in this neglect proceeding was informed of her counsel’s withdrawal before the court made the neglect finding in her and her counsel’s absence. Matter reversed and remitted.

Practice Point: Two dissenters argued no appeal lies from a default and mother’s only remedy is a motion to vacate the default.

 

You might also like
CLAIMANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CROSS EXAMINE THE CONSULTANTS WHOSE REPORTS WERE THE BASIS FOR THE DENIAL OF CLAIMANT’S REQUEST FOR SURGERY (THIRD DEPT).
Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing
Plea Allocution Insufficient—Plea Vacated in Absence of Motion to Withdraw or Vacate
Statements to Police Officer by Victim at the Scene Were “Nontestimonial” and Were Admissible as Excited Utterances
ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).
QUESTIONS OF FACT WHETHER DEFENDANT WAS THE OWNER OF THE SCOOTER, WHETHER DEFENDANT KNEW DECEDENT WAS NOT COMPETENT TO OPERATE THE SCOOTER, AND WHETHER DEFENDANT GAVE DECEDENT PERMISSION TO TEST DRIVE THE SCOOTER; THE NEGLIGENT ENTRUSTMENT ACTION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).
In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars
PROSECUTOR’S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT, A TEACHER IN A CATHOLIC SCHOOL, WAS NOT GIVEN ENOUGH TIME TO CONSULT... PETITIONERS, RESIDENTIAL HEALTH CARE FACILITIES, SOUGHT A WRIT OF MANDAMUS PURSUANT...