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The People of the State of New York Ex Rel. Joel Danishefsky, et al v. Roderick Covlin

New York Supreme and/or Appellate Courts Appellate Division, First Department


October 16, 2012

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JOEL DANISHEFSKY, ET AL.,
PETITIONERS-APPELLANTS,
v.
RODERICK COVLIN, ET AL.,
RESPONDENTS-RESPONDENTS,
JO ANN DOUGLAS, NONPARTY
RESPONDENT. PHILIP DANISHEFSKY, ET AL.,
PETITIONERS-APPELLANTS,
v.
RODERICK COVLIN, ET AL.,
RESPONDENTS-RESPONDENTS, JO ANN DOUGLAS, NONPARTY
RESPONDENT.

People ex rel. Danishefsky v Covlin

Decided on October 16, 2012

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.

Mazzarelli, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered January 11, 2010, which, to the extent appealed from, appointed Jo Ann Douglas, Esq., as attorney for the children Anna and Myles Covlin and directed that petitioners Philip Danishefsky and Peggy Danishefsky pay 50% of Douglas's compensation, unanimously affirmed, without costs. Amended order, same court and Justice, entered on or about November 9, 2010, which, to the extent appealed from, directed Philip Danishefsky and Peggy Danishefsky to pay 50% of the fees of Jane B. Freidson, Esq., the court-appointed attorney for Myles Covlin, unanimously affirmed, without costs. Judgment, same court and Justice, entered April 19, 2011, awarding Jo Ann Douglas the sum of $15,154.69 against Philip Danishefsky and Peggy Danishefsky for necessaries provided by Douglas to Anna Covlin, unanimously affirmed, without costs. Order, Supreme Court, New York County (Ellen Gesmer, J.), entered on or about August 12, 2010, which, to the extent appealed from, appointed Jane B. Freidson, Esq., as attorney for the child Myles Covlin and directed Joel Danishefsky and Jaelene Danishefsky to pay 100% of Freidson's fees, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 12, 2010, which, to the extent appealed from, appointed Jo Ann Douglas, Esq., as attorney for the child Anna Covlin and directed Joel Danishefsky and Jaelene Danishefsky to pay 100% of Douglas's compensation, unanimously affirmed, without costs. Judgment, same court and Justice, entered April 19, 2011, awarding Jo Ann Douglas the sum of $18,204.63 against Joel Danishefsky and Jaelene Danishefsky for necessaries provided by Douglas to Anna Covlin, unanimously affirmed, without costs.

Petitioners in both habeas corpus proceedings argue on appeal that the court below lacked the authority to order them to pay the fees of the attorneys for the subject children. Petitioners were directed to pay the disputed fees by the orders appointing the attorneys for the children. Petitioners did not move to vacate the orders and even made partial payments of the attorneys' fees pursuant to the court's directives. Petitioners voiced no challenge to the court's authority to direct payment until months later when the attorneys for the children had already rendered their services and Douglas made motions for orders directing the payment of her outstanding fees in proceeding No. 1. To be sure, petitioners in proceeding No. 1 (Philip Danishefsky and Peggy Danishefsky) consented to one of the orders that directed further payment of the fees. We find that it was incumbent on petitioners to make their present objections known to the court before the attorneys rendered services in reliance on their acquiescence. Petitioners are therefore estopped from making the arguments they now make on appeal (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). We have considered petitioners' remaining arguments for affirmative relief in both proceedings and find them unavailing.

Unlike the judgments before us, the orders issued in both proceedings are not appealable as of right because they did not decide motions on notice (CPLR 5701[a][2]). However, in the interest of judicial economy, we nostra sponte deem the notices of appeal from the orders motions for leave to appeal, which we grant (see Winn v Tvedt, 67 AD3d 569 [1st Dept 2009]).

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

ENTERED: OCTOBER 16, 2012

CLERK

20121016

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