Hartman v. Smith

207 A.D.2d 345, 616 N.Y.S.2d 207

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 1, 1994
• Status: Published

Opinion

—In a child custody proceeding, the Law Guardian appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated December 23, 1992, which, after the parties entered into a stipulation providing, inter alia, that custody would be with the mother and ample visitation would be afforded to the father and his family, directed that the proceeding be withdrawn and the appellant be relieved as Law Guardian.

Ordered that the appeal is dismissed, without costs or disbursements.

It is well settled that an appeal to the Appellate Division may be taken as of right from a final or interlocutory judgment (see, CPLR 5701 [a] [1]), or from an order which decides a motion made on notice (see, CPLR 5701 [a] [2]; Arslanian v Volkswagen of Am., 121 AD2d 492). In this case, the order appealed from did not decide a motion made upon notice. Therefore, no appeal as of right lies therefrom (see, Blasie v County of Westchester, 169 AD2d 697; Nicolini v Carvel Corp., 142 AD2d 633). Moreover, permission to appeal from the order was not sought (see, Barry/Dave/Glenn, Inc. v Salkowitz, 181 AD2d 754), nor are we inclined to grant leave to appeal under these circumstances and in view of the sparse nature of the record (see, eg., Greater N. Y. Mut. Ins. Co. v Lancer Ins. Co., 203 AD2d 515; Sainz v New York City Health & Hosps. Corp., 106 AD2d 500; Roberts v Modica, 102 AD2d 886; Everitt v Health Maintenance Ctr., 86 AD2d 224). Accordingly, the appeal is dismissed, and we have no occasion to reach the merits of the appellant’s contentions. Sullivan, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.