Opinion
2021-06287
11-12-2021
IN THE MATTER OF ALBA M. MERCEDES, PETITIONER-RESPONDENT, v. CARLOS M. SANCHEZ, RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
Appeal from an amended order of the Family Court, Erie County (Deanne M. Tripi, J.), entered December 5, 2019 in a proceeding pursuant to Family Court Act article 4. The amended order, among other things, reconfirmed the determination of the Support Magistrate.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Family Court Act article 4, alleging that respondent willfully failed to obey a prior order of child support. The Support Magistrate determined that respondent had willfully violated the order of child support and, inter alia, recommended committing him to jail for a period of 60 days. Family Court confirmed the finding of willful violation and committed respondent to jail as recommended. Respondent thereafter moved, inter alia, to vacate the court's order on the ground that it was entered at a time when the court's jurisdiction was suspended based on the pendency of respondent's application to remove the matter to federal court. The court denied the motion to vacate and also entered an amended order that, inter alia, "reconfirmed" the Support Magistrate's determination. Respondent appeals from the amended order, contending only that the court erred in denying his motion to vacate.
Preliminarily, we note that respondent's appeal from the amended order brings up for our review the propriety of the order denying his motion to vacate (see generally CPLR 5501 [a] [1]; Family Ct Act § 1118; Matter of Cheyenne C. [James M.], 185 A.D.3d 1517, 1518 [4th Dept 2020], lv denied 35 N.Y.3d 917 [2020]; Matter of Clark v Ormiston, 101 A.D.3d 870, 870 [2d Dept 2012]). Nonetheless, we conclude that the appeal must be dismissed as moot (see generally Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 713-714 [1980]; Matter of Cullop v Miller, 173 A.D.3d 1652, 1652-1653 [4th Dept 2019]). Even assuming, arguendo, that the motion to vacate should have been granted, the amended order was entered after the denial of respondent's removal application, at a time when it is undisputed that the court had jurisdiction (see generally 28 USC § 1446 [d]; Railroad Co. v Koontz, 104 U.S. 5, 16 [1881]; Matter of State of New York v Fuller, 31 A.D.2d 71, 72 [2d Dept 1968]), and therefore "any corrective measures which this Court might have taken with respect to the order [respondent sought to vacate] would have no practical effect" (Cullop, 173 A.D.3d at 1652-1653 [internal quotation marks omitted]). We further conclude that the exception to the mootness doctrine does not apply here (see generally Hearst Corp., 50 N.Y.2d at 714-715).