KALEIDA HEALTH, MTR. OF MARIA J.

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2015
• Docket: CA 14-01101
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

758 CA 14-01101 PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.

IN THE MATTER OF THE APPLICATION OF MARIA J., PETITIONER, FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON AND PROPERTY OF PETER J., PERSON ALLEGED TO BE INCAPACITATED. ---------------------------------------------- MEMORANDUM AND ORDER MARIA J., PETITIONER-APPELLANT. ---------------------------------------------- BERNHARDI & LUKASIK LAW OFFICES, AS COUNSEL TO PETER J., RESPONDENT-RESPONDENT. (PROCEEDING NO. 1.) ______________________________________________

IN THE MATTER OF THE APPLICATION OF KALEIDA HEALTH, PETITIONER, FOR AN ORDER OVERRIDING THE HEALTH CARE DECISIONS OF GUARDIAN AND SURROGATE PETER J. ---------------------------------------------- KALEIDA HEALTH, PETITIONER-RESPONDENT. ---------------------------------------------- MARIA J., RESPONDENT, AND BERNHARDI & LUKASIK LAW OFFICES, AS COUNSEL TO PETER J., RESPONDENT-RESPONDENT. (PROCEEDING NO. 2.)

MARK E. LEWIS, CHEEKTOWAGA, FOR PETITIONER-APPELLANT.

BERNHARDI & LUKASIK LAW OFFICES, BUFFALO (JOSEPH L. NICASTRO OF COUNSEL), FOR RESPONDENT-RESPONDENT.

MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (AVEN RENNIE OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), entered August 23, 2013. The order, among other things, adjudged that the appointment of Maria J. as guardian of the person and property of Peter J. is deemed to have ceased as of August 15, 2013.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: In this guardianship proceeding pursuant to article 81 of the Mental Hygiene Law, Maria J. (petitioner) contends that Supreme Court erred in directing that her appointment as guardian of -2- 758 CA 14-01101

her incapacitated son be terminated as of August 15, 2013. As petitioner acknowledges, however, she consented to that order, as well as to a subsequent order naming her other son as the successor guardian. The appeal must therefore be dismissed, inasmuch as “ ‘[n]o appeal lies from an order entered by consent upon the stipulation of the appealing party’ ” (Matter of Myers v Tracy, 93 AD3d 1213, 1214; see Johnson v State of New York, 256 AD2d 1179, 1179). Although petitioner contends for the first time on appeal that her consent was not voluntary, the proper procedural vehicle for her to pursue that claim is a motion to vacate the order (see Matter of Michelle F., 280 AD2d 969, 969).

Entered: June 19, 2015 Frances E. Cafarell Clerk of the Court