In re Jennifer G.

190 A.D.2d 1095

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Appeal unanimously dismissed without costs. Memorandum: On June 19, 1992 respondent moved to vacate Family Court’s March 13, 1989 order that found he had abused his children and to reopen the underlying fact-finding hearing. Family Court, by order dated August 5, 1992, directed that "the decision upon the fact-finding hearing dated March 13, 1989 is hereby vacated”. That order was served with notice of entry on all parties on August 5, 1992. No appeal was taken from that order. Petitioner sought resettlement of that order and on September 2, 1992 Family Court signed an amended order. The amended order deleted the original order’s reference to the presence of the children’s Law Guardian at oral argument, and added a new ordering paragraph that "all other Orders of this Court shall remain in effect until further order of this Court”. The amended order was served on respondent on November 12, 1992. Petitioner, by notice of appeal filed November 12, 1992, appealed that portion of Family Court’s amended order that vacated its March 13, 1989 order. Because the amended order only clarified the original order and made no material change in that order to constitute a new determination, the time to appeal must be measured from the date of service of a copy of the original order with notice of entry (see, Singer v Board of Educ., 97 AD2d 507; May v May, 66 AD2d 918; Matter of Kolasz v Levitt, 63 AD2d 777, 779). Petitioner’s notice of appeal, filed four months after service of the original order, is therefore untimely and the appeal must be dismissed (CPLR 5513 [a]; see, Matter of Kolasz v Levitt, supra). (Appeal from Order of Onondaga County Family Court, Rossi, J. — Sexual Abuse.) Present — Denman, P. J., Pine, Lawton, Fallon and Davis, JJ.