Opinion
247 CAF 21-01747
03-24-2023
In the Matter of Debra S. HOLIDAY, Petitioner-Respondent, v. Kendra L. HOLIDAY, Respondent-Respondent, and Dylan W. Bush, Respondent-Appellant.
SARK LAW, LLC, HORSEHEADS (SUJATA RAMAIAH OF COUNSEL), FOR RESPONDENT-APPELLANT. MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILD.
SARK LAW, LLC, HORSEHEADS (SUJATA RAMAIAH OF COUNSEL), FOR RESPONDENT-APPELLANT.
MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, inter alia, awarded petitioner maternal grandmother sole custody of the subject child. The record establishes, however, that the father consented to the order and it is well settled that "no appeal lies from an order entered upon the parties’ consent" ( Matter of Heinsler v. Sero , 177 A.D.3d 1316, 1317, 114 N.Y.S.3d 536 [4th Dept. 2019] [internal quotation marks omitted]; see Matter of Tina G. , 242 A.D.2d 980, 980, 664 N.Y.S.2d 695 [4th Dept. 1997] ). Although the father contends for the first time on appeal that he did not voluntarily consent to the order with respect to the award of legal custody, we note that "the proper procedural vehicle for [him] to pursue that claim is a motion to vacate the order" ( Matter of Maria J. [Peter J.] , 129 A.D.3d 1660, 1661, 11 N.Y.S.3d 781 [4th Dept. 2015] ; see generally Matter of Michelle F. , 280 A.D.2d 969, 969, 720 N.Y.S.2d 878 [4th Dept. 2001] ).