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

764
CA 15-00559
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


DAMING ZHU, PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

YE CHENG, DEFENDANT-APPELLANT.


TULLY RINCKEY PLLC, ALBANY (HEATHER L. YOUNGMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

THEODORE W. STENUF, ATTORNEY FOR THE CHILD, MINOA.


     Appeal from a judgment of the Supreme Court, Onondaga County
(Martha Walsh Hood, A.J.), entered December 15, 2014. The judgment,
insofar as appealed from, awarded primary physical custody of the
parties’ minor child to plaintiff.

     It is hereby ORDERED that the judgment insofar as appealed from
is unanimously reversed on the law without costs, the fifth decretal
paragraph is vacated and the matter is remitted to Supreme Court,
Onondaga County, for a new custody hearing.

     Memorandum: Defendant mother, as limited by her brief, appeals
from a judgment that, inter alia, awarded plaintiff father primary
physical custody of the parties’ minor child. On the morning of
trial, defendant’s counsel withdrew from representation for nonpayment
of legal fees, and defendant requested an adjournment to enable her to
obtain new counsel and the testimony of witnesses. Supreme Court
denied her request, and defendant thus was forced to proceed pro se.

     We conclude that the court abused its discretion in denying
defendant’s request for an adjournment (see Matter of Bobi Jo B. v
Jerry L.W., 45 AD3d 1382, 1383; cf. Matter of Grice v Harris, 114 AD3d
1276, 1276). The record establishes that defendant’s request was not
a delay tactic and did not result from her lack of diligence (see Bobi
Jo B., 45 AD3d at 1383; cf. Matter of Sophia M.G.-K. [Tracy G.-K.], 84
AD3d 1746, 1747). We also agree with defendant that the court’s
refusal to grant defendant an adjournment to obtain new counsel
resulted in the absence of a full and complete record upon which the
court could render an adequate and informed decision. “The custody
determination of the trial court generally is entitled to great
deference . . . , but [s]uch deference is not warranted . . . where
the custody determination lacks a sound and substantial basis in the
record” (Matter of Amrane v Belkhir, 141 AD3d 1074, 1075 [internal
quotation marks omitted]).
                                 -2-                           764
                                                         CA 15-00559

     We therefore reverse the judgment insofar as appealed from,
vacate the fifth decretal paragraph, concerning custody, and remit the
matter to Supreme Court for a new custody hearing. Pending the
court’s determination upon remittal, the custody and visitation
provisions in the judgment appealed from shall remain in effect.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
