SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

804 

CAF 14-02290 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

IN THE MATTER OF ETA ROTTENBERG, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

WAYNE CLARKE, RESPONDENT-APPELLANT. 

(APPEAL NO. 1.) 

 

WAYNE CLARKE, RESPONDENT-APPELLANT PRO SE.

SHEILA SULLIVAN DICKINSON, ATTORNEY FOR THE CHILD, MIDDLESEX. 

 

Appeal from an order of the Family Court, Erie County (Kevin M.

Carter, J.), entered March 13, 2014 in a proceeding pursuant to Family

Court Act article 6. The order modified a prior order by requiring

respondent’s visitation with the subject child to be supervised. 

It is hereby ORDERED that said appeal is unanimously dismissed

except insofar as respondent challenges the denial of his motion for

recusal, and the order entered February 20, 2014 is affirmed without

costs. 

Memorandum: Respondent father appeals from two orders in a

proceeding pursuant to Family Court Act article 6. The order in

appeal No. 1 granted petitioner mother’s petition seeking to modify

the visitation provisions contained in a prior order by requiring that

the father’s visits with the subject child be supervised. The order

in appeal No. 2 granted the mother’s petition seeking an order of

protection on behalf of the child. 

With respect to the order in appeal No. 1, the record establishes

that, during the hearing on the mother’s petition, the father

discharged his assigned counsel, advised Family Court that he would

proceed pro se, and failed to appear for the remainder of the hearing. 

Thus, we conclude that the order in appeal No. 1 was entered upon the

father’s default, and it is well settled that no appeal lies from an

order that is entered upon the default of the appealing party (see

CPLR 5511; Matter of Li Wong v Fen Liu, 121 AD3d 692, 693; Matter of

Alexandria M. [Mattie M.], 108 AD3d 548, 549). In any event, even

assuming, arguendo, that the order was not entered on the father’s

default, we nevertheless reject his contention that the court erred in

modifying the prior order of visitation inasmuch as the court’s

determination is supported by a sound and substantial basis in the

record (see Matter of Green v Bontzolakes, 111 AD3d 1282, 1284). 
-2- 804 

CAF 14-02290 

Nevertheless, the father’s appeal from the final order brings up

for our review “matters which were the subject of contest” before the

court (James v Powell, 19 NY2d 249, 256 n 3, rearg denied 19 NY2d 862;

see Britt v Buffalo Mun. Hous. Auth., 109 AD3d 1195, 1196), i.e., the

underlying order denying the father’s recusal motion. We conclude

that the father’s contention that the court should have recused itself

is without merit. Absent a ground for disqualification under

Judiciary Law § 14, a trial judge is the sole arbiter of whether

recusal is warranted (see Matter of Hogan v Fischer, 90 AD3d 1544,

1545, lv denied 19 NY3d 801). Here, we conclude that the court did

not abuse its discretion in denying the father’s motion for recusal

because he failed to set forth any evidence of bias or prejudice on

the part of the court (see Matter of Montesdeoca v Montesdeoca, 38

AD3d 666, 667).

With respect to the order in appeal No. 2, even assuming,

arguendo, that the order of protection was not entered upon the

father’s default and thus that the appeal is properly before us, that

order expired by its own terms on March 13, 2015, and the appeal must

therefore be dismissed as moot (see Matter of Rochester v Rochester,

26 AD3d 387, 387-388). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court