Opinion
1250 CAF 19-01536
12-23-2020
In the Matter of John F. MCINTOSH, Petitioner-Respondent, v. John A. MCINTOSH, Respondent-Appellant. (Appeal No. 1.)
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent challenges the authority of the Referee to hear and determine the matter, and the order is affirmed without costs.
Memorandum: Respondent appeals in appeal No. 1 from an order of protection, entered on his default, requiring him, inter alia, to remain at least 500 feet away from petitioner and to refrain from any communication with petitioner. Respondent appeals in appeal No. 2 from an order denying his motion to vacate the order of protection.
As a preliminary matter, with respect to appeal No. 2, "[t]he notice of appeal was filed prior to the entry of the order, thus rendering the notice of appeal premature" ( Consumer Solutions Reo, LLC v. Giglio , 78 A.D.3d 1609, 1609-1610, 913 N.Y.S.2d 434 [4th Dept. 2010] ). Although we may treat the premature notice of appeal as valid as a matter of discretion in the interest of justice (see CPLR 5520 [c] ), we decline to do so here (see Thornton v. City of Rochester , 160 A.D.3d 1446, 1446, 72 N.Y.S.3d 881 [4th Dept. 2018] ; Matter of Justeen T. , 17 A.D.3d 1148, 1148, 793 N.Y.S.2d 844 [4th Dept. 2005] ). With respect to appeal No. 1, respondent contends that the record does not establish that he consented to having the Referee hear and determine the matter. Initially, "[w]here, as here, the order of protection was issued upon the appellant's default, review is limited to matters which were the subject of contest below" ( Matter of Mary C. v. Anthony C. , 61 A.D.3d 682, 682, 877 N.Y.S.2d 366 [2d Dept. 2009] [internal quotation marks omitted]; see James v. Powell , 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967], rearg denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 [1967] ). Inasmuch as the Referee's authority to hear and determine the case was a subject of contest prior to respondent's later default, that issue is subject to review in appeal No. 1 (see Matter of DiNunzio v. Zylinski , 175 A.D.3d 1079, 1080-1081, 108 N.Y.S.3d 634 [4th Dept. 2019] ; Mary C. , 61 A.D.3d at 682-683, 877 N.Y.S.2d 366 ). Nonetheless, even assuming, arguendo, that appeal No. 1 is not moot despite the expiration of the order of protection (see Matter of Veronica P. v. Radcliff A. , 24 N.Y.3d 668, 670-673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015] ; Matter of Eric R. v. Henry R. , 179 A.D.3d 554, 554, 114 N.Y.S.3d 640 [1st Dept. 2020] ), we reject respondent's contention. Based on our review of the record, we conclude that the order of protection "do[es] not lack the essential jurisdictional predicate of [respondent's] consent to have the matter[ ] heard and decided by the Referee" ( Matter of Mattice v. Palmisano , 159 A.D.3d 1407, 1408, 72 N.Y.S.3d 681 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2921144 [2018] [internal quotation marks omitted] ).