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McMillian v. Rizzo

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


August 25, 2009

IN THE MATTER OF HERBERT MCMILLIAN, APPELLANT,
v.
MAE RIZZO, RESPONDENT.

In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Negron, Ct. Atty. Ref.), dated April 21, 2008, which dismissed his petition. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738) and moves to be relieved of the assignment to prosecute the appeal.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ANITA R. FLORIO and PLUMMER E. LOTT, JJ.

(Docket No. V-10492-02)

DECISION & ORDER

ORDERED that the appeal is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that assigned counsel's application for leave to withdraw as counsel is dismissed as academic.

The Family Court can direct visitation only with minor children, who are defined under the Family Court Act as "person[s] who [have] not attained the age of eighteen years" (Family Ct Act § 119; see Family Ct Act § 651; Matter of Lozada v Pinto, 7 AD3d 801, 801). Inasmuch as the subject child is now over 18 years of age, the appeal must be dismissed as academic (see Matter of McGovern v Lynch, 62 AD3d 712; Matter of Metcalf v Odums, 35 AD3d 865, 866; Matter of Lozada v Pinto, 7 AD3d at 801; Matter of Lisnitzer v Lisnitzer, 119 AD2d 576, 576; cf. Matter of Kmea J., 54 AD3d 376, 376).

SPOLZINO, J.P., SANTUCCI, FLORIO and LOTT, JJ., concur.

20090825

© 1992-2009 VersusLaw Inc.



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