Matter of Audra Z. v. Lina Y. , 23 N.Y.S.3d 722 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 518397
________________________________
In the Matter of AUDRA Z.,
Appellant,
v MEMORANDUM AND ORDER
LINA Y.,
Respondent,
et al.,
Respondent.
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Calendar Date: November 18, 2015
Before: Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.
__________
Michelle I. Rosien, Philmont, for appellant.
Carman Garufi, Binghamton, attorney for the child.
__________
Egan Jr., J.
Appeal from an order of the Family Court of Broome County
(Charnetsky, J.), entered January 23, 2014, which partially
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for modification of a prior order of
custody and visitation.
The underlying facts are more fully set forth in this
Court's prior decisions (Matter of Lina Y. v Audra Z., 132 AD3d
1086 [2015]; Matter of Lina Y. v Audra Z., 122 AD3d 1084 [2014]).
Insofar as is relevant here, petitioner (hereinafter the mother)
is the mother of a child (born in 1998), and respondent Lina Y.
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is the child's maternal aunt.1 By order entered May 16, 2013,
Family Court awarded the aunt sole custody of the child, with
such visitation to the mother as could be agreed upon by the
parties. The mother subsequently commenced this proceeding
seeking to modify that order, contending that the aunt was
thwarting her visitation attempts and seeking, among other
things, the return of her child. Shortly thereafter, the mother
also appealed Family Court's May 2013 order to this Court. A
hearing on the mother's modification petition then ensued and, by
order entered January 23, 2014, Family Court, among other things,
continued the child's placement with the aunt and established a
limited visitation schedule for the mother. The mother then
brought this appeal from Family Court's January 2014 order.
While that appeal was pending, this Court considered the mother's
appeal from Family Court's May 2013 order and, in October 2015,
concluded that the aunt failed to establish the extraordinary
circumstances necessary to deprive the mother of custody.
Accordingly, this Court reversed the May 2013 order and dismissed
the aunt's petition (Matter of Lina Y. v Audra Z., 132 AD3d 1086
[2015], supra).
"[I]n general an appeal will be considered moot unless the
rights of the parties will be directly affected by the
determination of the appeal and the interest of the parties is an
immediate consequence of the judgment. The ability of an
appellate decision to directly and immediately impact the
parties' rights and interests is among the most important aspects
of the mootness analysis, for otherwise the analysis might turn
on inchoate or speculative matters, making mootness an unwieldy
doctrine of a thousand what ifs" (Matter of Veronica P. v
Radcliff A., 24 NY3d 668, 671 [2015] [internal quotation marks
and citations omitted]). Here, the mother ascribes error to
Family Court's failure to modify an order of custody and
visitation that, as noted previously, this Court recently
reversed. It necessarily follows that any determination by this
Court in the context of the instant appeal will not directly
1
The child's father, respondent Massimo X., took no part
in the proceeding before Family Court and does not appear on this
appeal.
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impact the parties' respective rights and, therefore, this appeal
is dismissed as moot (see e.g. Matter of Kylee Y. [Timothy Z.],
129 AD3d 1221, 1222 [2015]; Matter of Andrew L., 64 AD3d 915, 918
[2009]).
Peters, P.J., Garry, Rose and Devine, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court