Opinion
2021-07399
12-23-2021
SCOTT C. WARME, PLAINTIFF-APPELLANT, v. SAMANTHA M. BANAS, DEFENDANT-RESPONDENT.
JACKSON & BALKIN, LOCKPORT (NICHOLAS D. D'ANGELO OF COUNSEL), FOR PLAINTIFF-APPELLANT. CAMILLE S. BROWN, NIAGARA FALLS, ATTORNEY FOR THE CHILD.
JACKSON & BALKIN, LOCKPORT (NICHOLAS D. D'ANGELO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CAMILLE S. BROWN, NIAGARA FALLS, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Niagara County (Paula L. Feroleto, J.), entered September 10, 2020. The judgment, inter alia, dissolved the marriage between the parties.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: In this divorce action, plaintiff husband appeals from an order that, inter alia, granted the cross motion of defendant wife insofar as it sought an order dismissing that portion of the complaint seeking "custody and/or visitation" with respect to the subject child. Although the order is subsumed in the final judgment of divorce subsequently entered and the appeal properly lies from the judgment, we exercise our discretion to treat the notice of appeal as valid and deem the appeal taken from the judgment (see CPLR 5520 [c]; Antinora v Antinora, 125 A.D.3d 1336, 1337 [4th Dept 2015]; Hughes v Hughes, 84 A.D.3d 1745, 1745-1746 [4th Dept 2011]), and we affirm for reasons stated in the decision at Supreme Court underlying the order.