State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 518867 

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In the Matter of ADAM MOSIER,

Respondent,

v MEMORANDUM AND ORDER

NICKI COLE,

Appellant.

(And Other Related Proceedings.)

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Calendar Date: April 23, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Lisa A. Burgess, Indian Lake, for appellant.

Claudia A. Russell, Willsboro, for respondent.

Lisa Lorman, Amsterdam, attorney for the child.

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Egan Jr., J.

Appeal from an order of the Family Court of Essex County

(Meyer, J.), entered February 26, 2014, which, among other

things, granted petitioner's application, in a proceeding

pursuant to Family Ct Act article 6, to modify a prior order of

custody.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the parents of a child born in 2006. 

The mother resides with her fiancé – the father's brother – and

her daughter from a prior relationship, and the father resides

with his wife – the mother's distant cousin – and their daughter. 

In November 2006, the parties entered into an order upon consent
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providing for joint legal custody with primary physical custody

to the mother and visitation to the father. That order

subsequently was modified three times – each time upon consent –

to address, among other things, various visitation issues,

ultimately culminating in an order entered in May 2013.

In October 2013, the father commenced a proceeding in

Warren County seeking to modify the visitation provisions of the

May 2013 order. After that proceeding was transferred to Essex

County, where the parties resided, the father commenced

additional related proceedings – again alleging violations of the

visitation provisions of the subject order – and, eventually,

seeking sole custody of the minor child. Following a hearing,

Family Court, in a well-reasoned decision, modified the May 2013

order by, among other things, awarding the father sole legal and

physical custody of the child and granting certain specified

periods of visitation to the mother. The mother now appeals from

Family Court's resulting February 2014 order.1

The father has advised this Court that, during the pendency

of this appeal, Family Court issued a subsequent order – entered

in November 2014 – that immediately suspended and denied any and

all "parenting time, contact and communication by and between"

the mother and the child pending further order of the court.2 In

so doing, Family Court expressly provided that its November 2014

order superseded all prior custody orders to the extent that such

orders were in conflict therewith. Under these circumstances,

the mother's appeal from Family Court's February 2014 order is

1 Although various inconsistencies exist between the

mother's notice of appeal and the CPLR 5531 statement, we will

exercise our discretion and treat the notice of appeal as valid

(see CPLR 5520 [c]; cf. Matter of Neroni v Granis, 121 AD3d 1312,

1313 n 1 [2014], appeal dismissed 25 NY3d 957 [2015]).

2 The father has provided this Court with a copy of Family

Court's subsequent order (compare Matter of Whiting v Ward, 97

AD3d 861, 862 [2012]), and we may take judicial notice thereof

(see Matter of Hannah U. [Patti U.], 110 AD3d 1258, 1260 n 5

[2013]).
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moot and must be dismissed (see Matter of Giovanni K., 62 AD3d

1242, 1242 [2009], lv denied 12 NY3d 715 [2009]; cf. Matter of

Mace v Miller, 93 AD3d 1086, 1086 [2012]; Matter of Kimberly M.

[Nancy L.], 67 AD3d 562, 562 [2009]; see generally Matter of

Whiting v Ward, 97 AD3d 861, 863 [2012]).

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court