Opinion
2012-11-29
In the Matter of CATHERINE C., Respondent, v. BILLY D., Appellant. (And Another Related Proceeding.)
Samuel D. Castellino, Elmira, for appellant. Norbert A. Higgins, Binghamton, attorney for the children.
Samuel D. Castellino, Elmira, for appellant. Norbert A. Higgins, Binghamton, attorney for the children.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
LAHTINEN, J.
Appeal from an order of the Family Court of Chemung County (Buckley, J.), entered July 15, 2011, which granted petitioner's applications, in two proceedings pursuant to Family Ct. Act articles 6 and 8, for, among other things, custody of the parties' children.
In this custody dispute between petitioner and respondent, Family Court, among other things, granted petitioner legal and physical custody at a time when respondent was incarcerated. The record reflects that Family Court's order was entered July 15, 2011 and mailed that same day to respondent by a court clerk. Respondent's notice of appeal from the order was not filed until September 2, 2011. As relevant here, Family Ct. Act § 1113 requires that an appeal “must be taken no later than [35] days from the mailing of the order to the appellant by the clerk of the court.” Respondent's appeal was untimely as it was filed beyond the 35–day period and, accordingly, the appeal must be dismissed ( see Matter of Deandre GG. [Charlice HH.], 79 A.D.3d 1384, 1385, 912 N.Y.S.2d 801 [2010],lv. denied16 N.Y.3d 708, 921 N.Y.S.2d 188, 946 N.E.2d 176 [2011];Matter of Alexis BB., 285 A.D.2d 751, 752, 727 N.Y.S.2d 662 [2001];Matter of Sullivan v. Sullivan, 254 A.D.2d 573, 573, 678 N.Y.S.2d 922 [1998];see also Cappiello v. Cappiello, 66 N.Y.2d 107, 108, 495 N.Y.S.2d 318, 485 N.E.2d 983 [1985] [observing that “the failure timely to serve a notice of appeal goes to jurisdiction over the subject matter, which may be raised at any time”] ).
ORDERED that the appeal is dismissed, without costs.