Opinion
Nos. 2892 2893 Index Nos. O-01926/22 V-01928/22 Case Nos. 2023-04544 2023-04511
10-24-2024
In the Matter of Tashawnda L., Petitioner-Appellant, v. Ladarius M. P., Respondent-Respondent. In the Matter of Tashawnda L., Petitioner-Appellant, v. Ladarius M. P., Respondent-Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Law Office of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Law Office of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Before: Kern, J.P., Moulton, Scarpulla, Rodriguez, Michael, JJ.
Appeals from orders, Family Court, New York County (Gail A. Adams, Ref.), entered on or about August 10, 2023, which dismissed petitioner's custody and family offense petitions without prejudice based on her failure to appear at the fact-finding hearing, unanimously dismissed, without costs, as moot (custody petition) and as taken from a nonappealable order (family offense petition).
Petitioner's appeal from the order dismissing her custody petition without prejudice for her failure to appear has been rendered moot, insofar as it relates to custody and visitation issues, by her subsequent filing of a new custody petition in January 2024 (see Matter of Sandra G. v Victor P., 71 A.D.3d 588 [1st Dept 2010], lv dismissed 15 N.Y.3d 862 [2010]).
Although petitioner moved to vacate the order of dismissal of her family offense petition, the record shows that no decision was ever made, and no order was entered deciding her motion. Consequently, the argument that the dismissal of the family offense petition should be vacated because the default was excusable and she had a meritorious defense was not ruled upon, and petitioner's motion based on that argument remains "pending and undecided," which precludes a review by this Court (Katz v Katz, 68 A.D.2d 536, 543 [2d Dept 1979]; see Wells Fargo Bank, N.A. v Biderman, 221 A.D.3d 557, 558 [1st Dept 2023], Squitieri v Kaufman, 193 A.D.3d 534 -535 [1st Dept 2021]).