SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

698 

CAF 14-00273 

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

 

IN THE MATTER OF ARKADIAN S., EDEN S., AND 

ELYSIUM S. 

------------------------------------------------- MEMORANDUM AND ORDER

CAYUGA COUNTY DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, PETITIONER-RESPONDENT; 

 

CRYSTAL S. AND JOSHUA S., RESPONDENTS-APPELLANTS. 

CYNTHIA B. BRENNAN, AUBURN, FOR RESPONDENT-APPELLANT CRYSTAL S. 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF

COUNSEL), FOR RESPONDENT-APPELLANT JOSHUA S.

FREDERICK R. WESTPHAL, COUNTY ATTORNEY, AUBURN (SAMUEL P. GIACONA OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

JAMES A. LEONE, ATTORNEY FOR THE CHILDREN, AUBURN.

 

Appeals from an order of the Family Court, Cayuga County (Mark H.

Fandrich, A.J.), entered January 9, 2014 in a proceeding pursuant to

Family Court Act article 10. The order denied the motion of

respondent Crystal S. to vacate prior court orders. 

It is hereby ORDERED that said appeal by respondent Joshua S. is

unanimously dismissed and the order is affirmed without costs. 

Memorandum: Respondents appeal from an order denying respondent

mother’s motion pursuant to Family Court Act § 1061 and CPLR 5015 (a)

(2) and (3) to vacate various prior orders that limited her

reunification and contact with the subject children, including a June

10, 2013 order modifying a permanency planning goal, a 2012 order

suspending her parenting time with the subject children, and an

October 27, 2010 order issued upon an application for temporary

removal of the children. She also sought to vacate an August 30, 2012

order finding that respondent father abused and derivatively neglected

the subject children. We note at the outset that the father is not an

aggrieved party and therefore lacks standing to appeal inasmuch as he

did not formally join in the mother’s motion to vacate (see Matter of

Abraham S., 291 AD2d 452, 452; Matter of George O., 115 Misc 2d 782,

783 n 2). Thus, his appeal must be dismissed (see CPLR 5511; Matter

of Cooper v Cooper, 74 AD3d 1868, 1868-1869). 

Contrary to the mother’s contention, we conclude that Family

Court did not abuse its discretion in denying her motion without a
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CAF 14-00273 

hearing (see Matter of Carrie F. v David PP., 34 AD3d 1108, 1109).

The mother failed to make an “ ‘evidentiary showing sufficient to

warrant a hearing’ ” on the issue of good cause to vacate the prior

orders (Matter of Melissa FF., 285 AD2d 682, 684; see Matter of Kole

HH. [Thomas HH.], 84 AD3d 1518, 1519; Matter of Cadejah AA., 34 AD3d

1141, 1142). Indeed, her motion is based on a single, misinterpreted

phrase in the September 2, 2011 progress note.

To the extent that the mother purports to appeal directly from

the 2012 order suspending her parenting time with the subject

children, contending that her due process rights were violated by that

order, we note that her contention is not properly before us inasmuch

as she failed to take a timely appeal from that order (see Family Ct

Act § 1113). 

We do not consider the mother’s contention that the father’s due

process rights were violated and thus that the court should have

granted that part of her motion seeking to vacate the order finding

that he abused and derivatively neglected the subject children. “[I]t

is well established that third parties may not assert the alleged

violations of another’s constitutional rights” (Matter of Harriet II.

v Alex LL., 292 AD2d 92, 95; see Forward v Webster Cent. Sch. Dist.,

136 AD2d 277, 280, appeal dismissed 72 NY2d 908, reconsideration

denied 73 NY2d 740). We note in any event that the mother raises that

contention for the first time on appeal and thus failed to preserve it

for our review (see Matter of Emerald L.C. [David C.], 101 AD3d 1679,

1680; Matter of York v Zullich, 89 AD3d 1447, 1448). 

Finally, we reject the mother’s contention that she is entitled

to vacatur of the orders pursuant to CPLR 5015 (a) (2) and (3). 

Although the Attorney for the Children correctly notes that the mother

failed to include those provisions as a ground for relief in her

notice of motion, we disregard this technical deficiency inasmuch as

she included those grounds for relief in her attorney’s supporting

affirmation (see CPLR 2001; Matter of LiMandri, 171 AD2d 747, 747). 

In any event, the mother is not entitled to relief pursuant to CPLR

5015 (a) (2). She failed to show that the September 2, 2011 progress

note was not disclosed during discovery in the underlying abuse and

neglect proceeding against father, and thus the evidence was not newly

discovered (see Matter of Mark D. v Marion M., 12 AD3d 1082, 1083;

Kerner v Kerner [appeal No. 5], 262 AD2d 1082, 1082, lv dismissed in

part and denied in part 94 NY2d 873). Additionally, the progress note

“would not likely have produced a different result” in light of the

evidence that the father sexually abused one of the subject children

(Matter of Latasha M., 205 AD2d 457, 457). The mother is not entitled

to relief pursuant to CPLR 5015 (a) (3) because she “failed to meet

[her] burden of establishing the existence of fraud, misrepresentation

or other misconduct of an adverse party” (Matter of Shere L. v Odell

H., 303 AD2d 1023, 1024; see Rappold v Wagner [appeal No. 4], 244 AD2d

856, 856). 

Entered: July 2, 2015 Frances E. Cafarell

Clerk of the Court