ROTTENBERG, ETA v. CLARKE, WAYNE ( 2016 )

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