You are here: / / MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING...
,

MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

​

In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

You might also like
PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT).
DEFENDANT WAS CHARGED WITH PREDATORY SEXUAL ASSAULT AGAINST A CHILD, A CLASS A-II FELONY PUNISHABLE BY A MANDATORY MAXIMUM TERM OF LIFE IMPRISONMENT; PURSUANT TO CRIMINAL PROCEDURE LAW 195.10[1][B] DEFENDANT CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION (SCI) (THIRD DEPT). ​
THE EVIDENCE DID NOT DEMONSTRATE THE DEVELOPMENT OF A PARENT-CHILD RELATIONSHIP BETWEEN RAYMOND F AND THE CHILD; THEREFORE RAYMOND F’S REQUEST FOR A GENETIC MARKER TEST SHOULD NOT HAVE BEEN DENIED (THIRD DEPT).
ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW.
It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident
Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction
THE EDUCATION LAW PROVISIONS AND RELATED REGULATIONS (1) REQUIRING NONPUBLIC SCHOOLS TO PROVIDE EDUCATION EQUIVALENT TO THAT PROVIDED BY PUBLIC SCHOOLS, AND (2) ALLOWING PUBLIC FUNDING TO BE CURTAILED AND REQUIRING STUDENTS TO ATTEND A DIFFERENT SCHOOL IF THE EQUIVALENCY TEST IS NOT MET ARE VALID AND ENFORCEABLE; THERE WAS A DISSENT (THIRD DEPT).
THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION.

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

FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED,... MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT...