| Matter of Renner v Costigan |
| 2014 NY Slip Op 08649 [123 AD3d 834] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Elizabeth Renner,Appellant, v Daniel Costigan, Respondent. (Matter No. 1.) In the Matter ofElizabeth Renner, Appellant, v Daniel Costigan, Respondent. (Matter No. 2.) In theMatter of Daniel A. Costigan, Respondent, v Elizabeth A. Renner, Appellant. (MatterNo. 3.) |
Steven P. Forbes, Jamaica, N.Y., for appellant.
Daniel A. Costigan, P.C., Douglaston, N.Y. (Daniel Costigan, pro se, of counsel),for [*2]respondent.
David Laniado, Cedarhurst, N.Y., attorney for the children.
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'spetition to modify a prior order of custody. The order dated September 28, 2012, amongother 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, thatthe court grant the father's petition to modify a prior order of visitation. The order datedOctober 2, 2012, granted the father's petition to modify a prior order of visitation. Theorder dated December 10, 2012, denied the mother's motion to vacate the order datedSeptember 28, 2012.
Motion by the respondent to dismiss all four appeals on the ground that they havebeen rendered academic. By decision and order on motion of this Court dated October29, 2013, the motion was held in abeyance and referred to the panel of Justices hearingthe 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 orderdated December 10, 2012, is granted, and the motion is otherwise denied as academic inlight of our determination herein dismissing the remaining appeals on other grounds; andit 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 theground 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 issuedan order dated September 24, 2013, further limiting the mother's visitation with thesubject children to only supervised therapeutic visitation during the daytime on alternateweekends (see Matter of Costigan v Renner, 123 AD3d 825 [2014] [decided herewith]). As a result, the appeal from the order dated December10, 2012, has been rendered academic (see Matter of Solovay v Solovay, 94 AD3d 898 [2012]; Matter of Gasparro v Edwards,85 AD3d 1222 [2011]; Matter of Englese v Strauss, 83 AD3d 705 [2011]).
Accordingly, we grant that branch of the father's motion which is to dismiss theappeal from the order dated December 10, 2012, on the ground that the appeal has beenrendered academic, and do not address the merits of the mother's contentions on thatappeal. Additionally, we dismiss the appeals from the orders dated April 26, 2012, andOctober 2, 2012, as abandoned, and we dismiss the appeal from the order datedSeptember 28, 2012, on the ground that no appeal lies from an order entered upon thedefault of the appealing party. Hall, J.P., Cohen, Hinds-Radix and LaSalle, JJ.,concur.