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McDermott v. McDermott

State of New York Supreme Court, Appellate Division Third Judicial Department


January 7, 2010

IN THE MATTER OF CHARLES MCDERMOTT, APPELLANT,
v.
FRANK C. MCDERMOTT, RESPONDENT.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: November 18, 2009

Before: Peters, J.P., Lahtinen, Malone Jr., Kavanagh and Stein, JJ.

Appeal from an order of the Family Court of Delaware County (Becker, J.), entered March 4, 2009, which, in a proceeding pursuant to Family Ct Act article 8, transferred the proceeding from Delaware County to Kings County.

Petitioner, a disabled adult, filed a family offense petition and an amended family offense petition in Delaware County Family Court seeking an order of protection against respondent, his father. After concluding that petitioner's allegations related predominantly to acts occurring in Kings County, Family Court transferred the proceeding to that jurisdiction (see Family Ct Act § 174) and petitioner appealed. Inasmuch as such a transfer order "is not appealable to this [C]court as of right since it is not an order of disposition which is final in nature" (Matter of Young v Morse, 92 AD2d 706, 706 [1983]; see Family Ct Act § 1112; Matter of Bradberry v Robinson, 302 AD2d 906, 906 [2003]), the matter is not properly before us because petitioner did not seek permission to appeal (see Matter of Zimmer v Peno, 194 AD2d 928, 929 [1993], lv dismissed 82 NY2d 802 [1993]).

In any event, upon learning that Kings County Family Court declined to accept the transfer and that a fact-finding hearing had been scheduled in Delaware County, appellate counsel for petitioner sought to be relieved of his assignment on the basis that the appeal is now moot. Since the filing of appellate counsel's brief, Delaware County Family Court has conducted a fact-finding hearing and dismissed the petitions with prejudice. Accordingly, the appeal is moot and we need not address appellate counsel's request to be relieved of his assignment (see Matter of Senator NN., 21 AD3d 1187, 1188 [2005]; Matter of Natasha F., 15 AD3d 788, 789 [2005]; Matter of Senator NN., 305 AD2d 819, 820 [2003]).

Peters, J.P., Malone Jr., Kavanagh and Stein, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.

20100107

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