| Matter of Suzanne v Suzanne |
| 2010 NY Slip Op 00040 [69 AD3d 1011] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kirby Suzanne, Appellant, v Gregory T. SuzanneJr., Respondent. |
—[*1] Paul J. Herrmann, Law Guardian, Saranac Lake.
McCarthy, J. Appeal from an order of the Family Court of Essex County (Meyer, J.), enteredFebruary 24, 2009, which, in a proceeding pursuant to Family Ct Act article 6, deniedpetitioner's motion to vacate a prior order of the court.
An order of custody and visitation on consent was entered in the Essex County Clerk's officeon August 1, 2008. The order granted petitioner sole legal custody and primary physical custodyof the parties' daughter and granted liberal visitation to respondent. The order specified thatunless the parties agreed otherwise, the parties would meet to exchange the child at a specificlocation in the Village of Lake Placid, Essex County. That location was selected becauserespondent did not have a car and the agreed-upon location was within walking distance of hishome.
Approximately six weeks after agreeing to the order, petitioner sought modification of theexchange location in the Family Court of Franklin County. Family Court (Main, Jr., J.)concluded that petitioner "fail[ed] to allege a sufficient change in circumstances inasmuch as shechanged her own residence," and dismissed the petition without prejudice.
Thereafter, petitioner filed a new petition seeking the same relief from the Family Court ofEssex County. Family Court (Meyer, J.) dismissed the petition as barred by res judicata and/or[*2]collateral estoppel and denied petitioner's subsequent motionto vacate that order. Petitioner failed to pursue an appeal from the dismissal of her secondpetition and appeals only from the denial of her motion to vacate. Although petitioner's motion isdenominated as a motion to vacate Family Court's prior order, it is, in substance, a motion toreargue, and no appeal lies from an order denying such motion (see Matter of Dickinson vDickinson, 309 AD2d 994, 995 [2003]; Clissuras v Concord Vil. Owners, 299 AD2d446 [2002], appeal dismissed 3 NY3d 634 [2004], cert denied 543 US 1021[2004]; Federation of Puerto Rican Orgs. of Brownsville v Mateo, 235 AD2d 326, 327[1997], lv dismissed 90 NY2d 844 [1997]). "Inasmuch as a motion to vacate should notbe utilized as a means by which to raise an issue of law that could have been pursued in thecourse of a timely perfected appeal, there exists no basis upon which to find that [Family] Courtimprovidently exercised its discretion in denying [petitioner's] motion" (KLCR Land Corp. v New York State Elec.& Gas Corp., 15 AD3d 719, 720-721 [2005] [citations omitted]).
Cardona, P.J., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the appeal isdismissed, without costs.