State of New York Supreme Court, Appellate Division Third Judicial Department
May 26, 2011
IN THE MATTER OF SELENA O., AN INFANT. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT; TRISHA O., RESPONDENT,
STEVEN R., APPELLANT.
Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered November 19, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to award permanent custody of the child to the grandmother.
The opinion of the court was delivered by: Garry, J.
MEMORANDUM AND ORDER
Calendar Date: April 28, 2011
Before: Rose, J.P., Malone Jr., McCarthy, Garry and Egan Jr, JJ.
Petitioner commenced this proceeding seeking to have custody of respondents' child (born in 2008) awarded to the maternal grandmother. In the course of the proceedings, the parties came to an agreement that custody be granted to the grandmother with supervised visitation to respondents. Family Court thereafter entered an order reflecting the parties' agreement and respondent Steven R. (hereinafter the father) now appeals.
As the order was entered upon consent, it is not appealable (see Matter of Mary UU. [Michael UU.-Marie VV.], 70 AD3d 1227, 1228 ; Matter of Moore v Moore, 56 AD3d 982, 982 ; Matter of Fantasia Y., 45 AD3d 1215, 1215 ). Moreover, because he failed to make a motion to vacate the order, the father's claim that his consent was not knowing, voluntary and intelligent is not properly before us (see Matter of Mary UU. [Michael UU.-Marie VV.], 70 AD3d at 1228; Matter of McDonald v Reed, 68 AD3d 1181, 1182 , lv dismissed 14 NY3d 758 ; Matter of Fantasia Y., 45 AD3d at 1215) and, in any event, such assertion is belied by the record. Accordingly, the appeal is dismissed and counsel's application to be relieved of his assignment need not be addressed (see Matter of Marshall v Haas, 74 AD3d 1593, 1593-1594 ; Matter of Michaela PP. [Derwood PP.], 67 AD3d 1083, 1084 ).
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur.
ORDERED that the appeal is dismissed, without costs.
Robert D. Mayberger Clerk of the Court
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