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. 
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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