BUMP – Now whoever said no-fault lawyers are not versatile…

Update on this one – Remand in Family Court today.  Using my no-fault interest calculator, which I converted to normal use for my deep calculations, this fellow should be out $25,000 in arrears today if SM Watson sees this case the way it should be seen.  Plus, judgment rate interest.  Yet, if there is someone who deserves to feel the pain of no-fault compound interest, it is is petitioner.  My suspicion is that this gets adjourned.

Matter of Branch v Cole-Lacy, 2011 NY Slip Op 04047 (2d Dept. 2011)

This lady who appeared pro se during the morning of an Article 4 support hearing became ill, left a note for the court officer, went to the doctor and failed to appear for the afternoon session of the hearing.  The Support Magistrate would not adjourn the hearing and not only did the poor lady lose her modification petition, but she ended up with a judgment for the alleged overpayment of child support.  The record does not support this finding, by the way.

Instead of moving to vacate the order, granted on default, she filed objections, to Family Court.  The objections were denied and she filed a Notice of Appeal.  After obtaining two adjournments to perfect, she came to my office.

I felt bad so I told her to just pay the filing fees and disbursements and I would appeal the order pro bono.  She had about 6 days to perfect the appeal.  So, I ran to the Appellate Division, made copies of the orders, obtained the transcript and perfected this thing in 2 days.

The “record” was anemic at best, and I was afraid the outcome of the appeal was pre-ordained.  I perfected the appeal, and much to my delight, the orders were reversed on the facts and in the exercise of discretion and my client will have a second go around at it.  Definitely a good Friday the thirteenth.

“A hearing on the instant petition was scheduled to be held on January 15, 2010, in the Family Court, Nassau County. The mother appeared in court that morning, pro se, but allegedly became ill before the case was called. The mother submitted an adjournment request, indicating that she was ill, and then left the courthouse, allegedly to go see a doctor. When the case was called at approximately 3:00 P.M., the Support Magistrate acknowledged receiving the adjournment request, but proceeded with the hearing in the mother’s absence, in effect, denying the mother’s request for an adjournment. Thus, when the Family Court granted the father’s petition, it did so on the mother’s default. “However, notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order brings up for review those matters which were the subject of contest’ before the [Family] Court” (Tun v Aw, 10 AD3d 651, 652, quoting James v Powell, 19 NY2d 249, 256 n 3; see Matter of Brittany C. [Linda C.], 67 AD3d 788, 789; Matter of Mary C. v Anthony C., 61 AD3d 682, 682-683; Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607-608). Accordingly, review is limited to the denial of the mother’s request for an adjournment (see Tun v Aw, 10 [*2]AD3d at 652).

” The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'” (Matter of Paulino v Camacho, 36 AD3d 821, 822, quoting Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889). Under the particular circumstances of this case, however, the Support Magistrate improvidently exercised her discretion in denying the mother’s application for an adjournment.

Accordingly, we grant the mother’s objection to the denial of her request for an adjournment, and remit the matter to the Family Court, Nassau County, for a new hearing on the petition, and a new determination thereafter.”