Opinion
504 CAF 18–01947
04-24-2020
In the Matter of Laura B. RESKA, Formerly Known as Laura B. Kline, Formerly Known as Laura B. Austin, Petitioner–Appellant, v. Michael P. BROWNE, Respondent–Respondent. In the Matter of Michael P. Browne, Petitioner–Respondent, v. Laura B. Reska, Respondent–Appellant.
DEBORAH J. SCINTA, ORCHARD PARK, FOR PETITIONER–APPELLANT AND RESPONDENT–APPELLANT. VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILD.
DEBORAH J. SCINTA, ORCHARD PARK, FOR PETITIONER–APPELLANT AND RESPONDENT–APPELLANT.
VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-respondent mother appeals from an order that, inter alia, modified a prior order of custody and visitation by awarding respondent-petitioner father sole custody of the subject child. We affirm for reasons stated in the "decision and order" at Family Court. We write only to address two additional points. First, the contention of the mother and the Attorney for the Child (AFC) "that the court violated [the mother's] constitutional rights is not preserved for our review" ( Matter of Brandon v. King, 137 A.D.3d 1727, 1729, 28 N.Y.S.3d 757 [4th Dept. 2016], lv denied 27 N.Y.3d 910, 39 N.Y.S.3d 378, 62 N.E.3d 118 [2016] ; see generally CPLR 4017 ; Matter of Lydia K., 112 A.D.2d 306, 307, 491 N.Y.S.2d 752 [2d Dept. 1985], affd 67 N.Y.2d 681, 499 N.Y.S.2d 684, 490 N.E.2d 551 [1986] ), and we decline to address it in the interest of justice (see Matter of Jeffrey T. v. Julie B., 35 A.D.3d 1222, 1222, 829 N.Y.S.2d 767 [4th Dept. 2006] ; cf. Brandon, 137 A.D.3d at 1729, 28 N.Y.S.3d 757 ; Matter of Beebe v. Beebe, 298 A.D.2d 843, 843–844, 747 N.Y.S.2d 815 [4th Dept. 2002] ; see generally Matter of Tamara Liz H., 300 A.D.2d 202, 203, 752 N.Y.S.2d 634 [1st Dept. 2002] ). Second, to the extent that the mother preserved her further contention, joined by the AFC, that the court erred in considering the mother's toxicology test results in its determination that her visitation should be supervised, we conclude that the contention lacks merit. Furthermore, we conclude that the court's determination to impose supervised visitation is supported by the requisite "sound and substantial basis in the record" ( Matter of Vasquez v. Barfield, 81 A.D.3d 1398, 1398, 917 N.Y.S.2d 468 [4th Dept. 2011] [internal quotation marks omitted]; see Matter of Keen v. Stephens, 114 A.D.3d 1029, 1031, 981 N.Y.S.2d 174 [3d Dept. 2014] ).