Opinion
948 CA 20-00963
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.
MEMORANDUM AND ORDER
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, 3 N.Y.S.3d 500 [4th Dept. 2015] ; Hughes v. Hughes , 84 A.D.3d 1745, 1745-1746, 922 N.Y.S.2d 839 [4th Dept. 2011] ), and we affirm for reasons stated in the decision at Supreme Court underlying the order.