Opinion
17408-, 17408A-, 17408B Dkt. No. O-10959-19/19A Case Nos. 2022-02828, 2022-02830
02-28-2023
In the Matter of SAMUEL J.J., Petitioner–Respondent, v. SOFIA L.S., Respondent–Appellant.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Samuel J.J., respondent pro se.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Samuel J.J., respondent pro se.
Kern, J.P., Oing, Kennedy, Mendez, Pitt–Burke, JJ.
Order, Family Court, New York County (Jonathan H. Shim, J.), entered on or about June 15, 2022, which dismissed petitioner's violation petition without prejudice and vacated the temporary order of protection, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about June 15, 2022, unanimously dismissed, without costs, as taken by a nonaggrieved party. Appeal from order, same court and Judge, entered on or about August 15, 2022, which, upon reargument, adhered to the court's prior dismissal of the violation petition, unanimously dismissed, without costs, as abandoned.
Family Court did not abuse its discretion in dismissing petitioner's violation petition without prejudice. The record shows that petitioner withdrew that petition after Family Court urged the parties to consider settlement. Moreover, respondent, who was represented by counsel, consented to the entry of the civil order of protection directing her to stay away from and not contact petitioner until June 14, 2024. This resolved the underlying family offense petition. Furthermore, respondent made no showing that special circumstances existed or that petitioner agreed to the discontinuance only to avoid an adverse determination in the family offense proceeding, and thus, there was no reason to order the voluntary discontinuance with prejudice (see Eugenia VI Venture Holdings, Ltd. v. Maplewood Equity Partners, L.P., 38 A.D.3d 264, 265, 832 N.Y.S.2d 155 [1st Dept. 2007] ).
The appeal from the issuance of the civil order of protection is dismissed, as appellant consented to the order and therefore is not an aggrieved party within the meaning of CPLR 5511 (see e.g. Matter of Gabrielle N.N. [Jacqueline N.T.], 171 A.D.3d 671, 672, 101 N.Y.S.3d 44 [1st Dept. 2019] ; Matter of Tyshawn Jaraind C., 33 A.D.3d 488, 488, 823 N.Y.S.2d 34 [1st Dept. 2006] ).