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Sandra G. v. Victor P.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 30, 2010

IN RE SANDRA G., PETITIONER-RESPONDENT,
v.
VICTOR P., RESPONDENT-APPELLANT.

Appeal from order, Family Court, Bronx County (Alma Cordova, J.), entered on or about July 29, 2008, which, to the extent appealed from, denied respondent's motion to vacate default orders of protection and of custody and visitation, same court and Judge, entered on or about December 4, 2007, unanimously dismissed, without costs, as moot.

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.

Saxe, J.P., Catterson, Moskowitz, Freedman, RomÁn, JJ.

Given the absence of any genuine possibility of confusion or prejudice attributable to the father's failure to include in the caption of the notice of appeal the docket number of the custody proceeding initiated by the mother, we exercise our discretion to disregard that defect and treat the notice of appeal as valid insofar as the father seeks to appeal custody and visitation-related issues (see CPLR 5520[c]; Cirillo v Macy's, Inc., 61 AD3d 538, 539 [2009]). Nonetheless, the father's subsequent filing of a new custody petition, and his consent to satisfaction of that petition by entry of a final order of visitation, render his appeal moot insofar as it relates to custody and visitation issues (see Matter of Kimberly M. [Nancy L.], 67 AD3d 562, 562 [2009]). Likewise, the expiration of the order of protection has rendered the father's appeal moot insofar as it seeks to vacate the entry of that order on default, as the father has identified no "permanent and significant stigma" or other enduring consequences which might flow from the entry of the order of protection on default (see Matter of Diallo v Diallo, 68 AD3d 411 [2009]).

Were we to reach the merits, we would find that the father has failed to demonstrate any reasonable excuse for his default or meritorious defense to the mother's claims which would warrant vacatur of the default orders (see CPLR 5015[a]; Matter of Jaynices D. [Yesenia Del V.], 67 AD3d 518, 519 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100330

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