Matter of Toussaint T.E. (Allen E.)

2020 NY Slip Op 07271

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2020
• Docket: Docket No. B-40381/16 Appeal No. 12549 Case No. 2019-4564
• Status: Published

Opinion

Matter of Toussaint T.E. (Allen E.) (2020 NY Slip Op 07271)

Matter of Toussaint T.E. (Allen E.)

2020 NY Slip Op 07271

Decided on December 03, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 03, 2020
Before: Friedman, J.P. Kapnick, Gesmer, Kern, Shulman, JJ.

Docket No. B-40381/16 Appeal No. 12549 Case No. 2019-4564

[*1]In the Matter of Toussaint T.E., a Child Under Eighteen Years of Age, etc., Allen E., Respondent-Appellant, The Children's Village, Petitioner-Respondent.

Tennille M. Tatum-Evans, New York, for appellant.

Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about March 26, 2019, which dismissed with prejudice respondent's motion to vacate a prior order, same court and Judge, entered on or about January 9, 2018, terminating his parental rights to the subject child upon a fact-finding determination that respondent abandoned the child, unanimously affirmed, without costs.

The order finding that respondent abandoned the child and terminating his parental rights to the child was affirmed by this Court before the return date of respondent's motion to vacate the order (Matter of Toussaint Thoreau E. [Allen E.], 170 AD3d 551 [1st Dept 2019]). As the appeal resolved all the issues that respondent had raised in his motion, the doctrine of law of the [*2]case precluded Family Court from entertaining the motion (Massey v Byrne, 164 AD3d 416, 416 [1st Dept 2018]). To the extent respondent purports to have supported the motion with newly discovered evidence (see id.; CPLR 5015[a][2]), it does not avail him. The evidence was not newly discovered and in any event would not have changed the prior determination (see Olwine, Connelly, Chase, O'Donnell & Weyher v Valsan, Inc., 226 AD2d 102, 103 [1st Dept 1996]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 3, 2020