| Matter of Anesi v Brennan |
| 2010 NY Slip Op 06023 [75 AD3d 791] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Rachel Anesi, Respondent, v Kevin Brennan,Appellant. (And 15 Other Related Proceedings.) |
—[*1] Jehed Diamond, Delhi, attorney for the child.
Rose, J. Appeals (1) from three orders of the Family Court of Broome County (Charnetsky,J.), entered March 18, 2009, which, in 16 proceedings pursuant to Family Ct Act article 6, deniedrespondent's motion to rescind certain prior orders, denied respondent's motion for certainvisitation, and denied respondent's motion to strike petitioner's answer to his violation petitions,and (2) from an order of said court (Lambert, J.), entered July 7, 2009, which, in 16 proceedingspursuant to Family Ct Act article 6, among other things, required the parties and their child toundergo a psychological evaluation.
A Family Court order entered in 2000 granted sole legal and physical custody of a son bornin 1993 to petitioner (hereinafter the mother) with weekly visitation to respondent (hereinafterthe father). In December 2008, after the father allegedly traumatized the son during a telephoneconversation, the son refused to visit with him any further and the mother filed a petition seekingto modify the 2000 order by terminating the father's visitation. In response, the father filednumerous petitions alleging violations of the prior order's visitation provisions. By ordersentered March 18, 2009, Family Court (Charnetsky, J.) denied certain motions made by thefather but did not dismiss his petitions. When Family Court (Lambert, J.) later held a hearing onboth parties' petitions, the father failed to appear and the court dismissed his petitions for failureto prosecute. Based upon the mother's undisputed testimony as to the conflict between the sonand the father, Family Court issued an order, entered July 7, 2009, that continued sole [*2]custody with the mother but acknowledged the father's right tovisitation upon reapplication. The order also directed the father to obtain and provide the courtwith an independent mental health evaluation of the parties and their son to assist the court indetermining whether preparational therapy would foster future visitation. The father appeals thethree orders entered in March 2009 and the order entered in July 2009.[FN*]
While those appeals were pending, Family Court issued another order, entered April 12,2010, that modified its July 7, 2009 order by relieving the father from the requirement that heobtain and provide the independent psychological evaluation. Instead, the modified orderdirected that the evaluation be conducted at public expense, and that the evaluator provide areport to the court and the parties. The father has filed a notice of appeal from that order, but theappeal has not yet been perfected. Since the new order does not differ materially from the priororder, however, we will treat his perfected appeal as taken from both orders in the interest ofjudicial economy (see CPLR 5520 [c]; Matter of Scala v Tefft, 42 AD3d 689, 691 n [2007]; Matter ofWayne M. v Francis N., 154 AD2d 837, 839 [1989]).
Contrary to the father's contention, Family Court did not expressly modify or terminate hisvisitation rights under the 2000 custody order. Rather, the court dismissed his petitions due to hisfailure to prosecute them and acknowledged his right to seek enforcement of visitation upon anappropriate future application. Accordingly, he is not an aggrieved party and he cannot pursue anappeal from that aspect of the order (see CPLR 5511; Matter of Carol YY. v James OO., 68 AD3d 1463 [2009]; Matter of Brian JJ. v Heather KK., 61AD3d 1285, 1287 [2009]; Matterof Morris v Ciaramitaro, 13 AD3d 924 [2004]). As for the father's contention that theJuly 7, 2009 order is improper because it places the burden upon him to obtain a mental healthevaluation before he may seek to enforce visitation, any such error was rectified in the new orderwhich now places the burden of performing the evaluation and providing a report on the BroomeCounty Mental Health Forensics Unit (see Matter of Armstrong v Heilker, 47 AD3d 1104, 1105-1106[2008]; see also Matter of Marchand vNazzaro, 55 AD3d 968, 969 [2008]).
Peters, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the orders enteredMarch 18, 2009 are affirmed, without costs. Ordered that the appeal from the order entered July7, 2009 is dismissed, without costs.
Footnote *: Inasmuch as the father raises noissues in his brief regarding the March 18, 2009 orders, he has abandoned those appeals (see Matter of Eck v Eck, 57 AD3d1251, 1252 n 2 [2008]).