Opinion
No. 2393 Index No. V-08834/18 Case No. 2020-01740
05-30-2024
In the Matter of Trina M., Petitioner-Respondent, v. Bryant P., Respondent-Appellant.
John R. Eyerman, New York, for appellant. Janet Neustaetter, The Children's Law Center, Brooklyn (Eva D. Stein of counsel), attorney for the child.
John R. Eyerman, New York, for appellant.
Janet Neustaetter, The Children's Law Center, Brooklyn (Eva D. Stein of counsel), attorney for the child.
Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Gesmer, Rosado, JJ.
Appeal from order, Family Court, Bronx County (Tamara Schwartzman, Referee), entered on or about January 22, 2020, which, to the extent appealed from as limited by the briefs, after a hearing, permitted the mother of the subject child to relocate with the child to North Carolina, unanimously dismissed, without costs, for failure to timely perfect the appeal.
Respondent father's appeal was dismissed by operation of the Rules of the Appellate Division, All Departments (22 NYCRR) § 1250.10[a], which states, "In the event that an appellant fails to perfect a civil matter within six months of the date of the notice of appeal... the matter shall be deemed dismissed without further order" (see also 22 NYCRR 1250.9[a]; Humble Monkey, LLC v Rice Sec., LLC, 184 A.D.3d 498, 498 [1st Dept 2020]). The date of the notice of appeal is February 19, 2020. The father, who at all relevant times was represented by appellate counsel, did not perfect his appeal until November 2, 2023, more than three years from the date of the notice of appeal. Nor did he seek to vacate the dismissal.
The father's counsel refiled the previously filed notice of appeal in tandem with the filing of his brief. This was not effective to extend the six-month perfection deadline (22 NYCRR 1250.9[a]). Moreover, the parties' stipulations to adjourn the appeal, executed in 2023 and 2024, are outside the scope of those contemplated in 22 NYCRR 1250.9(b).
While we do not condone the striking of the father's testimony, we note that, on the record before us including his testimony, his appeal does not appear to have merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.