Friday, December 12, 2014

A Long Visitation Saga Comes to an Interim Closure

A case that I have been involved with in a variety of capacities over the last decade reached another crossroads at the Appellate Division this week, with two appeals being decided by the Court. Here's the first of two decision handed down:

Decided on December 10, 2014 
SUPREME COURT OF THE STATE OF NEW YORK 
Appellate Division, Second Judicial Department 
L. PRISCILLA HALL, J.P. 
JEFFREY A. COHEN 
SYLVIA O. HINDS-RADIX 
HECTOR D. LASALLE, JJ.


2012-04795 
(Docket Nos. V-16300-10/12M, V-16301-10/12M, V-16384-10/12Q, V16385-10/12Q) 


Appeals from four orders of the Family Court, Queens County (Stephen J. Bogacz, J.), dated April 26, 2012, September 28, 2012, October 2, 2012, and December 10, 2012, respectively. The order dated April 26, 2012, dismissed, without prejudice, the mother's petition to modify a prior order of custody. The order dated September 28, 2012, among other things, in effect, confirmed a report of a Referee (Julie Stanton, Ct. Atty. Ref.) recommending, after a hearing and upon the mother's default, among other things, that the court grant the father's petition to modify a prior order of visitation. The order dated October 2, 2012, granted the father's petition to modify a prior order of visitation. The order dated December 10, 2012, denied the mother's motion to vacate the order dated September 28, 2012.

DECISION & ORDER
Motion by the respondent to dismiss all four appeals on the ground that they have been rendered academic. By decision and order on motion of this Court dated October 29, 2013, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the briefs of the parties, and upon the argument of the appeals, it is,
ORDERED that the branch of the motion which is to dismiss the appeal from the order dated December 10, 2012, is granted, and the motion is otherwise denied as academic in light of our determination herein dismissing the remaining appeals on other grounds; and it is further,
ORDERED that the appeals from the orders dated April 26, 2012, and October 2, 2012, are dismissed as abandoned; and it is further,
ORDERED that the appeal from the order dated September 28, 2012, is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,
ORDERED that one bill of costs is awarded to the father.
Following the Family Court's issuance of an order dated December 10, 2012, additional proceedings were conducted and, following a hearing, the Family Court issued an order dated September 24, 2013, further limiting the mother's visitation with the subject children to only supervised therapeutic visitation during the daytime on alternate weekends (see Matter of Costigan v Renner, _____ AD3d _____ [decided herewith]). As a result, the appeal from the order dated December 10, 2012, has been rendered academic (see Matter of Solovay v Solovay, 94 AD3d 898;Matter of Gasparro v Edwards, 85 AD3d 1222Matter of Englese v Strauss, 83 AD3d 705).
Accordingly, we grant that branch of the father's motion which is to dismiss the appeal from the order dated December 10, 2012, on the ground that the appeal has been rendered academic, and do not address the merits of the mother's contentions on that appeal. Additionally, we dismiss the appeals from the orders dated April 26, 2012, and October 2, 2012, as abandoned, and we dismiss the appeal from the order dated September 28, 2012, on the ground that no appeal lies from an order entered upon the default of the appealing party.
HALL, J.P., COHEN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino

Clerk of the Court

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