Polyak v. Toyber

Appellate Division of the Supreme Court of New York

Polyak v. Toyber

2 A.D.3d 642, 768 N.Y.S.2d 349

Appellate Division of the Supreme Court of the State of New York·Decided December 15, 2003·Published·Cited by 7 cases

Opinion

—In a proceeding pursuant to Family Court Act article 8, the husband appeals from an order of the Family Court, Queens County (DePhillips, J.), dated May 14, 2002, which, upon his consent, directed him, inter alia, to stay away from the petitioner.

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

The appellant is not aggrieved by the order, as it recites that it was entered on his consent (see CPLR 5511; Matter of Paradowski v Rowland, 286 AD2d 879 [2001]; Hartnett v Hartnett, 242 AD2d 535 [1997]; Carr v Integon Gen. Ins. Corp., 185 AD2d 831 [1992]). Thus, this appeal must be dismissed.

To the extent that the appellant’s arguments may be read to assert that such a recitation was erroneous, his remedy is to seek resettlement of the order (see Matter of Gesvantner v Dominguez, 273 AD2d 383 [2000]; Hemmings v St. Marks Hous. [643] Assoc. Phase II L.P., 272 AD2d 442 [2000]; Carr v Integon Gen. Ins. Corp., supra). To the extent that the appellant’s arguments may be read to assert that his consent was not valid and enforceable, his remedy is to seek vacatur of the order (see e.g. Matter of Andresha G., 251 AD2d 1005 [1998]; Matter of Tina G., 242 AD2d 980 [1997]; Baecher v Baecher, 95 AD2d 841 [1983]). Ritter, J.P., Florio, Smith and H. Miller, JJ., concur.

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—In a proceeding pursuant to Family Court Act article 8, the husband appeals from an order of the Family Court, Queens County (DePhillips, J.), dated May 14, 2002, which, upon his consent, directed him, inter alia, to stay away from the petitioner.

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

The appellant is not aggrieved by the order, as it recites that it was entered on his consent (see CPLR 5511; Matter of Paradowski v Rowland, 286 AD2d 879 [2001]; Hartnett v Hartnett, 242 AD2d 535 [1997]; Carr v Integon Gen. Ins. Corp., 185 AD2d 831 [1992]). Thus, this appeal must be dismissed.

To the extent that the appellant’s arguments may be read to assert that such a recitation was erroneous, his remedy is to seek resettlement of the order (see Matter of Gesvantner v Dominguez, 273 AD2d 383 [2000]; Hemmings v St. Marks Hous. [643] Assoc. Phase II L.P., 272 AD2d 442 [2000]; Carr v Integon Gen. Ins. Corp., supra). To the extent that the appellant’s arguments may be read to assert that his consent was not valid and enforceable, his remedy is to seek vacatur of the order (see e.g. Matter of Andresha G., 251 AD2d 1005 [1998]; Matter of Tina G., 242 AD2d 980 [1997]; Baecher v Baecher, 95 AD2d 841 [1983]). Ritter, J.P., Florio, Smith and H. Miller, JJ., concur.

Polyak v. Toyber, 2 A.D.3d 642, 768 N.Y.S.2d 349 (N.Y. Ct. App. 2003).

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Opinion

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