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In the Matter of Michael J. Nasser, as Commissioner of Department of Social Services, on Behalf of Donna S. Williams v. William Abraham
Opinions in this case
- Majority
- Majority
Order unanimously reversed, without costs, and petition reinstated. Memorandum: Family Court erred in dismissing two support petitions on the ground of respondent’s failure to appear at the hearing (see, generally, Family Ct Act, § 441; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 441).
Instead of rewarding respondent for his nonappearance by. dismissing the proceedings, Family Court could have granted an adjournment as requested by petitioner, issued a warrant (Family Ct Act, §§153, 428) or, if appropriate, found respondent to be in default and proceeded with an inquest (CPLR 3215, subd [a]; see Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A; Family Ct Act, § 428; cf. O’Toole v O’Toole, 88 AD2d 1011).
(Appeal from order of Oneida County Family Court, Pomilio, J. — dismiss petition.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.