| Matter of Biasutto v Biasutto |
| 2010 NY Slip Op 05819 [75 AD3d 671] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dominique Biasutto, Respondent, v JoyBiasutto, Appellant. (And Nine Other Related Proceedings.) |
—[*1] Mitch Kessler, Cohoes, for respondent. Angelo Scaturro, Coxsackie, attorney for the child.
Lahtinen, J. Appeals (1) from an order of the Family Court of Greene County (Lalor, J.),entered December 10, 2008, which, among other things, dismissed respondent's application, inproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody, (2) from anorder of said court, entered January 15, 2009, which denied respondent's motion to renew and/orreargue, and (3) from an order of the Family Court of Ulster County (McGinty, J.), enteredAugust 31, 2009, which, in proceedings pursuant to Family Ct Act article 6, denied respondent'smotion to resettle a prior order.
In May 2007, Greene County Family Court (Lalor, J.) granted respondent (hereinafter themother) and petitioner (hereinafter the father) joint legal custody of their child (born in 2005),with the father having primary physical custody. Within less than a year, both parties filedmodification petitions. Following a hearing, Family Court issued an order, entered December2008, which, among other things, denied the mother's application to change primary physicalcustody to her. The mother's ensuing motion—labeled as seeking to both reargue andrenew—was denied by an order entered in January 2009. Shortly thereafter, the partiesfiled additional proceedings in Ulster County Family Court. Those petitions were resolved by astipulation [*2]placed on the record in May 2009 and themother's counsel prepared the order for Family Court (McGinty, J.), which was entered in June2009. The mother's subsequent motion to resettle the June 2009 order was denied by FamilyCourt in August 2009. She now appeals from the orders entered in December 2008, January2009 and August 2009.
In her appeal from the December 2008 order, the mother contends that Family Court erred inits determination not to modify that part of the May 2007 order which granted the father physicalcustody. The appeal from this order has been superceded and rendered moot by the parties' May2009 stipulation and the order entered thereon in June 2009, which continued joint legal custodywith the father having primary physical custody (see Matter of Hall v Shannon, 59 AD3d 825 [2009]; Matter of Schermerhorn v Quinette, 28AD3d 822, 823 [2006]). In any event, the record supports Family Court's decision regardingphysical custody.
The mother's appeal from the January 2009 order, which denied her motion labeled as onefor reargument and renewal, must be dismissed. "Because [she] failed to present any new facts orchange in the law that would require a different determination, we view [the mother's] motion asone for reargument . . . and no appeal may be taken from the denial of a motion toreargue" (Mortgage Elec. RegistrationSys., Inc. v Schuh, 48 AD3d 838, 840 [2008], appeal dismissed 10 NY3d 951[2008]). Moreover, if the motion had been for renewal, the appeal from the January 2009 orderwould be dismissed since the underlying order (December 2008) for which reconsideration wassought is now moot.
The appeal from the order denying the motion for resettlement, which sought a substantivechange, must also be dismissed since "[a] denial of a motion to resettle a substantive portion ofan order is not appealable" (Tidball v Tidball, 108 AD2d 957, 958 [1985]). We furthernote that the record supports Family Court's conclusion that the June 2009 order accurately setsforth the stipulation placed on the record by the parties.
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the appeals aredismissed, without costs.