Submitted - May 7, 2018
E. Eisenberg, New City, NY, for appellant.
Smith, Middletown, NY, for respondent.
M. O'Brien, Goshen, NY, attorney for the child.
M. LEVENTHAL, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
proceeding pursuant to Family Court Act article 6, the mother
appeals from an order of the Family Court, Orange County
(Carol S. Klein, J.), dated March 1, 2017. The order, after a
hearing, granted the father's petition for sole physical
custody of the parties' child.
that the order is affirmed, without costs or disbursements.
mother and the father have one child in common. In May 2016,
the father filed a petition to modify a prior custody order
so as to award him sole physical custody of the child. The
mother failed to appear in court on the initial appearance
date for the father's petition, but her attorney was
present and participated in the proceedings. The Family Court
noted that the mother had been evading service of the
father's petition, and determined that service of the
petition via certified mail was sufficient. The father stated
that he had served the mother via certified mail, and
proffered a certified mail return receipt card. The court
accepted the card as proof of service and scheduled an
inquest on the father's petition.
to the commencement of the inquest, at which the mother again
did not appear, the mother's attorney gave the Judge a
copy of a complaint which named the Judge, among others, as a
defendant, and asserted that the mother had filed that
complaint in federal court in Georgia. The mother's
attorney argued that the Judge should recuse herself from the
instant proceeding. The Judge declined to do so, in part, on
the ground that she had not yet been served with that
complaint. After the inquest, the Family Court granted the
father sole physical and legal custody of the child. The
appearance by a defendant in an action is deemed to be the
equivalent of personal service of a summons upon him [or
her], and therefore confers personal jurisdiction over him
[or her], unless he [or she] asserts an objection to
jurisdiction either by way of motion or in his [or her]
answer'' (Countrywide Home Loans Servicing, LP v
Albert, 78 A.D.3d 983, 984 [internal quotation marks
omitted]; see National Loan Invs., L.P. v
Piscitello, 21 A.D.3d 537, 537-538). "'By
statute, a party may appear in an action by attorney (CPLR
321), and such an appearance constitutes an appearance by the
party for purposes of conferring jurisdiction'"
(National Loan Invs., L.P. v Piscitello, 21 A.D.3d
at 537-538, quoting Skyline Agency v Coppotelli,
Inc., 117 A.D.2d 135, 140). Here, by actively
participating in the proceedings through her counsel, the
mother waived any claim that the Family Court did not acquire
personal jurisdiction over her (see Matter of Tylan C.
[Patricia H], 140 A.D.3d 1161, 1162; Matter of
El-Sheemy v El-Sheemy, 35 A.D.3d 738, 739; Matter of
Borggreen v Borggreen, 13 A.D.3d 756, 757; Matter of
Fallon v Fallon, 4 A.D.3d 426, 427; Matter of Brozzo
v Brozzo, 192 A.D.2d 878, 880).
Law § 14 provides, inter alia, that "[a] judge
shall not sit as such in, or take any part in the decision
of, an action, claim, matter, motion or proceeding . . . in
which he [or she] . . . is interested."
"'Absent a legal disqualification under Judiciary
Law § 14, a Trial Judge is the sole arbiter of
recusal'' (Matter of Bonefish Grill, LLC v Zoning
Bd. of Appeals of the Vil. of Rockville Ctr., 153 A.D.3d
1394, 1397, quoting People v Moreno,70 N.Y.2d 403,
405; see Matter of Bianco v Bruce-Ross, 151 A.D.3d
716, 717; Stepping Stones Assoc., L.P. v Scialdone,148 A.D.3d 855, 856; Trimarco v Data Treasury Corp.,146 A.D.3d 1004, 1008). "[A] judge has an obligation not
to recuse himself or herself, even if sued in connection with
his or her duties, unless he or she is satisfied that he or
she is unable to serve with complete impartiality, in fact or
appearance" (Trimarco v Data Treasury Corp.,
146 A.D.3d at 1008 [internal quotation marks omitted];
see Silber v Silber,84 A.D.3d 931, 932; Robert