        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

133
CAF 11-00568
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF ERIE COUNTY DEPARTMENT OF
SOCIAL SERVICES, ON BEHALF OF RENEE E. WISER,
PETITIONER-RESPONDENT,
                                                 MEMORANDUM AND ORDER
                    V

ANDREW R. THOMPSON, RESPONDENT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.

JOHN S. CIPOLLA, BUFFALO, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered January 21, 2011 in a proceeding pursuant to
Family Court Act article 4. The order denied the objection to the
determination of the Support Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the objections to the
order of the Support Magistrate entered August 16, 2010 are granted
and the motion to vacate the order of the Support Magistrate entered
June 19, 2009 is granted, and the matter is remitted to Family Court,
Erie County, for further proceedings in accordance with the following
Memorandum: Petitioner commenced this proceeding pursuant to article
4 of the Family Court Act based on respondent father’s alleged willful
violation of a child support order. The Support Magistrate entered an
order in favor of petitioner upon the father’s alleged default. We
conclude that Family Court erred in denying the father’s objections to
a second order of the Support Magistrate, which denied the motion of
the father to vacate the order entered upon his alleged default. The
father’s “failure to appear at the fact-finding hearing . . . ‘does
not automatically constitute a default,’ in view of the fact that the
attorney for the [father] appeared on [his] behalf and requested an
adjournment” (Matter of Isaiah H., 61 AD3d 1372, 1373; see Matter of
David A.A. v Maryann A., 41 AD3d 1300; Matter of Shemeco D., 265 AD2d
860). “A party who is represented at a scheduled court appearance by
an attorney has not failed to appear” (Matter of Sales v Gisendaner,
272 AD2d 997, 997).

     We therefore reverse the order, grant the objections to the order
of the Support Magistrate entered August 16, 2010 and grant the motion
to vacate the order of the Support Magistrate entered June 19, 2009,
and we remit the matter to Family Court for further proceedings on the
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                                              CAF 11-00568

petition.




Entered:    January 31, 2012         Frances E. Cafarell
                                     Clerk of the Court
