Opinion
758 CA 14-01101
06-19-2015
In the Matter of the Application of MARIA J., Petitioner, for the Appointment of a Guardian of the Person and Property of Peter J., Person Alleged to be Incapacitated. Maria J., Petitioner–Appellant. Bernhardi & Lukasik Law Offices, as Counsel to Peter J., Respondent–Respondent. (Proceeding No. 1.) In the Matter of the Application of Kaleida Health, Petitioner, for an Order Overriding the Health Care Decisions of Guardian and Surrogate Peter J. Kaleida Health, Petitioner–Respondent. Maria J., Respondent, and Bernhardi & Lukasik Law Offices, as Counsel to Peter J., Respondent–Respondent. (Proceeding No. 2.).
Mark E. Lewis, Cheektowaga, for Petitioner–Appellant. Bernhardi & Lukasik Law Offices, Buffalo (Joseph L. Nicastro of Counsel), for Respondent–Respondent. Magavern Magavern Grimm LLP, Buffalo (Aven Rennie of Counsel), for Petitioner–Respondent.
Mark E. Lewis, Cheektowaga, for Petitioner–Appellant.
Bernhardi & Lukasik Law Offices, Buffalo (Joseph L. Nicastro of Counsel), for Respondent–Respondent.
Magavern Magavern Grimm LLP, Buffalo (Aven Rennie of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
Opinion
MEMORANDUM:In this guardianship proceeding pursuant to article 81 of the Mental Hygiene Law, Maria J. (petitioner) contends that Supreme Court erred in directing that her appointment as guardian of her incapacitated son be terminated as of August 15, 2013. As petitioner acknowledges, however, she consented to that order, as well as to a subsequent order naming her other son as the successor guardian. The appeal must therefore be dismissed, inasmuch as “ ‘[n]o appeal lies from an order entered by consent upon the stipulation of the appealing party’ ” (Matter of Myers v. Tracy, 93 A.D.3d 1213, 1214, 939 N.Y.S.2d 903 ; see Johnson v. State of New York, 256 A.D.2d 1179, 1179, 682 N.Y.S.2d 499 ). Although petitioner contends for the first time on appeal that her consent was not voluntary, the proper procedural vehicle for her to pursue that claim is a motion to vacate the order (see Matter of Michelle F., 280 A.D.2d 969, 969, 720 N.Y.S.2d 878 ).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.