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177 A.D.2d 579

Mitchell v. Morris

Appellate Division of the Supreme Court of the State of New York · decided 1991-11-12

Decided 1991-11-12

¶1In a child custody and/or visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Lauria, J.), dated April 25, 1991, which, upon his default in appearing, held that an order of the same court, dated June 13, 1990, remained in full force and effect.

¶2Ordered that the appeal is dismissed, with costs.

¶3No appeal lies from an order made upon the default of the aggrieved party (see, CPLR 5511; Katz v Katz, 68 AD2d 536). The proper procedure would have been for the appellant to move to vacate his default, and if necessary, appeal from the order deciding that motion (Katz v Katz, supra).

¶4We further note that the appellant, if he be so advised, may move to modify the prior order of the Family Court based upon new facts or circumstances. Lawrence, J. P., Miller, Ritter and Copertino, JJ., concur.

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