Calendar Date: November 12, 2019
Albaugh, Accord, for appellant.
Obolensky, Delhi, for respondent.
Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.
from a decision of the Family Court of Chenango County
(Revoir Jr., J.), entered August 24, 2018, which, in a
proceeding pursuant to Family Ct Act article 6, denied
petitioner's application for an order to show cause to
vacate a prior default order.
(hereinafter the mother) and respondent (hereinafter the
father) are the parents of a child born in 2012. In May 2016,
Family Court entered a custody order on stipulation, granting
the parties joint legal custody of the child, with
alternating week-to-week physical placement of the child. The
parties thereafter filed separate petitions each seeking
modification of the May 2016 custody and visitation order.
The mother failed to appear at the September 2016 initial
appearance on her modification petition and, as a result,
Family Court dismissed her petition and entered an order
continuing the award of joint legal custody of the child and
granted the father's request for primary physical
placement of the child, with visitation to the mother. The
mother thereafter filed a second custody modification
petition but, after she failed to appear for a January 2017
court appearance, Family Court dismissed her second petition,
continuing in effect the prior September 2016 custody order.
The mother then filed a third modification petition upon
which Family Court assigned her counsel, ordered a home study
of her residence and scheduled the matter for a fact-finding
hearing. The date of the fact-finding hearing was
subsequently rescheduled several times and was ultimately set
for January 16, 2018. The mother failed to appear at the
January 16, 2018 hearing and Family Court, once again,
dismissed her petition, continuing in full force and effect
the previously entered September 2016 custody order.
On July 30, 2018, the mother filed an order to show cause
seeking to, among other things, open her default, set aside
the judgment and have Family Court reschedule the
fact-finding hearing. Family Court declined to sign the order
to show cause and, on August 20, 2018, issued a decision
denying same, with prejudice. Family Court further directed
that any new modification petition filed by the mother would
need to allege a change in circumstances subsequent to
January 16, 2018. The mother appeals.
extent that the mother seeks to appeal from Family
Court's August 20, 2018 decision, we note that said
decision was never reduced to an order and "no appeal
lies from a writing declining to sign an order to show
cause" (Xiaoling Shirley He v Xiaokang Xu, 165
A.D.3d 1501, 1502 n ; see USA Recycling, Inc. v
Baldwin Endico Realty Assoc., Inc., 147 A.D.3d 697, 698
). Even assuming, without deciding, that Family
Court's August 2018 decision constituted an order, we
note that an order denying an ex parte application seeking
issuance of an order to show cause is not appealable as of
right (see CPLR 5511, 5701 [a] ; Matter of
St. Lawrence County Support Collection Unit v Bowman,
152 A.D.3d 899, 899 , appeal dismissed 30
N.Y.3d 1032 ; see also New York Ctr. for Esthetic
& Laser Dentistry v VSLP United LLC, 159 A.D.3d 567,
568 ; Nall v Estate of Powell, 99 A.D.3d 411,
412 , lv denied 20 N.Y.3d 993');">20 N.Y.3d 993 ).
Accordingly, the mother's appeal must be dismissed.
P.J., Lynch and Aarons, JJ., concur.
that the appeal is dismissed, without costs.
 At the October 2016 initial appearance on
the mother's second modification petition, she claimed
that she defaulted on her previous petition because she was
hospitalized. In turn, Family Court directed the mother to
provide verification of said hospitalization prior to her
next court appearance; however, the mother never provided
said verification and subsequently failed to appear for the
next scheduled court appearance in January 2017.
 Family Court made certain minor changes to
the September 2016 custody order, which actually resulted in
the mother obtaining additional visitation ...