| Matter of Iorio v Hyler |
| 2008 NY Slip Op 02592 [49 AD3d 738] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Traci Iorio et al., Respondents, v JosephHyler, Appellant. In the Matter of Joseph Hyler, Appellant, v Traci Iorio, Respondent. In theMatter of Joseph Hyler, Appellant, v John Iorio, Respondent. In the Matter of Joseph Hyler,Appellant, v Traci Iorio, Respondent. In the Matter of Joseph Hyler, Appellant, v John Iorio,Respondent. In the Matter of John Iorio et al., Respondents, v Joseph Hyler,Appellant. |
—[*1] George E. Reed, Jr., White Plains, N.Y., for respondent Traci Iorio. Lisa F. Colin, White Plains, N.Y., attorney for the children.
In a family offense proceeding pursuant to Family Court Act article 8, and five related childcustody and visitation proceedings pursuant to Family Court Act article 6, Joseph Hyler appealsfrom (1) an order of the Family Court, Westchester County (Duffy, J.), dated August 7, 2006,which, after a hearing, granted the petition of Joseph Iorio and Traci Iorio to modify an order ofthe same court dated June 17, 2004, inter alia, awarding sole custody of the subject children tothem and granting him unsupervised visitation with the subject children, to the extent ofterminating his unsupervised visitation with the subject children, granting him only supervisedvisitation with the subject children, and directing him to pay the costs and expenses associatedwith supervised visitation, (2) an order of the same court also dated August 7, 2006, which, upona finding, after a hearing, that he had committed the family offenses of disorderly conduct andharassment in the second degree, granted Traci Iorio, John Iorio, Jr., and Caitlyn Iorio an order ofprotection directing him, among other things, to stay away from them until May 22, 2007, and (3)an order of the same court entered August 8, 2006, which, after a hearing, inter alia, dismissedhis petitions to modify the order dated June 17, 2004.
Ordered that the appeals are dismissed, without costs or disbursements.
By order dated June 17, 2004, the Family Court, Westchester County, inter alia, awarded solecustody of the subject children to Joseph Iorio and Traci Iorio, and granted the appellantunsupervised visitation. In the first order appealed from dated August 7, 2006 the June 17, 2004order was modified so as to grant the appellant only supervised visitation with the subjectchildren. That order was modified by a subsequent order of the same court entered March 5, 2007which directed that the appellant have therapeutic supervised visitation with the subject children.On September 18, 2007 the parties and the attorney for the children consented on the record thatthe appellant have supervised visitation with the subject children. On the same day, the FamilyCourt issued an order directing that the appellant's visitation merely be supervised. Therefore, asthe first order dated August 7, 2006 and the order entered August 8, 2006, inter alia, dismissingpetitions to modify the order dated June 17, 2004 have been superseded by the order datedSeptember 18, 2007, the appeals from these orders have been rendered academic (see Matterof Baker v Ratoon, 251 AD2d 921, 922 [1998]; see also Matter of Paoli v Paoli, 29 AD3d 804 [2006]).
The appellant has raised no issue with respect to the second order dated August 7, 2006granting an order of protection against him. Accordingly, he has abandoned the appeal from thatorder (see 22 NYCRR 670.8 [e]; Matter of Rebecca O. v Todd P., 309 AD2d982, 983 [2003]).
We note that the appellant's arguments regarding the order of the Family Court, WestchesterCounty, entered March 5, 2007, are not properly before this Court, as he did not appeal from thatorder (see Matter of Ashley S., 129 AD2d 581 [1987]).
Motion by the respondent Traci Iorio, inter alia, to dismiss appeals from two orders of theFamily Court, Westchester County, both dated August 7, 2006, and an order of the same courtentered August 8, 2006. By decision and order on motion of this Court dated November 9, 2007,[*2]that branch of the motion which was to dismiss the appealswas held in abeyance and was referred to the Justices hearing the appeals for determination uponthe argument or submission thereof.
Upon the papers submitted in support of the motion, the papers submitted in oppositionthereto, and upon the submission of the appeals, it is
Ordered that the branch of the motion which is to dismiss the appeals is denied as academicin light of our determination of the appeals [see decision herein]. Mastro, J.P., Rivera,Spolzino and Dickerson, JJ., concur.