Gorski v. Phalen

• Decision Date: 09 October 2020
• Docket Number: CAF 19-00907,775
• Citation: 133 N.Y.S.3d 714,187 A.D.3d 1670
• Parties: In the Matter of Randolph GORSKI and Barbara Gorski, Petitioners-Respondents, v. Richard PHALEN, Respondent-Appellant, and Jolynn Gorski, Respondent-Respondent. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1670

133 N.Y.S.3d 714

In the Matter of Randolph GORSKI and Barbara Gorski, Petitioners-Respondents,

v. Richard PHALEN, Respondent-Appellant,andJolynn Gorski, Respondent-Respondent. (Appeal No. 2.)

775

CAF 19-00907

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 9, 2020

DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

THE WILLIAMS LAW FIRM, LLP, BATAVIA (THOMAS D. WILLIAMS OF COUNSEL), FOR PETITIONERS-RESPONDENTS.

CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-RESPONDENT.

MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent-appellant challenges the finding of extraordinary circumstances and the order is affirmed without costs.

Memorandum: Petitioners petitioned for custody of their granddaughter, the subject child in this proceeding. Following a hearing, Family Court found the extraordinary circumstances necessary to inquire into the child's best interests, and further found that the child's interests were best served in petitioners' custody. The court thus granted the petition and awarded supervised visitation to respondents, the child's parents. Respondent father then appealed from that order. During the pendency of the appeal, however, the court entered an order on consent of the parties that continued custody with petitioners and awarded respondents unsupervised visitation with the child.

The later consent order renders moot the father's challenge to the court's finding regarding the child's best interests (see Matter of Wallace v. Eure , 181 A.D.3d 1329, 1329, 120 N.Y.S.3d 689 [4th Dept. 2020] ; Matter of Daniels v. Jones , 144 A.D.3d 1420, 1420, 40 N.Y.S.3d 922 [3d Dept. 2016] ), but not his challenge to the court's finding of extraordinary circumstances (see Matter of Green v. Green , 139 A.D.3d 1384, 1385, 31 N.Y.S.3d 371 [4th Dept. 2016] ; Matter of Van Dyke v. Cole , 121 A.D.3d 1584, 1585, 994 N.Y.S.2d 219 [4th Dept. 2014] ). Contrary to the father's contention, the fourth ordering paragraph in the consent order—which purports to reserve his right to challenge the entirety of the order on appeal—is ineffective and unenforceable because "litigants have no authority to ‘stipulate to enlarge our appellate jurisdiction’ " ( Dumond v. New York Cent. Mut. Fire Ins. Co. , 166 A.D.3d 1554, 1556, 88 N.Y.S.3d 752 [4th Dept. 2018] ; see Commissioner of Social Servs. of City of N.Y. v. Harris , 26 A.D.3d 283, 286, 810 N.Y.S.2d 175 [1st Dept. 2006] ). Indeed, it is well established that litigants " ‘cannot, by agreement between them, ... predetermine the scope of [appellate] review’ " ( Dumond , 166 A.D.3d at 1556, 88 N.Y.S.3d 752, quoting Amherst & Clarence Ins. Co. v. Cazenovia Tavern , 59 N.Y.2d 983, 984, 466 N.Y.S.2d 660, 453 N.E.2d 1077 [1983], rearg denied 60 N.Y.2d 644, 467 N.Y.S.2d 1032, 455 N.E.2d 488 [1983] ; see Matter of Shaw , 96 N.Y.2d 7, 13, 724 N.Y.S.2d 672, 747 N.E.2d 1272 [2001], citing Robinson v. Oceanic Steam Nav. Co. , 112 N.Y. 315, 324, 19 N.E. 625 [1889] ). We...