Reilly v. Reilly

49 A.D.3d 883, 853 N.Y.2d 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2008
• Status: Published

Opinion

Where, as here, an order recites that it is made on consent, it is not appealable (see Matter of Gittens v Chin-On, 19 AD3d 596 [2005]; Matter of Polyak v Toyber, 2 AD3d 642 [2003]; Matter of Brouwer v Pacicca, 291 AD2d 448, 449 [2002]). To the extent that the appellant challenges the recitation of consent as it appears on the order dated January 29, 2007, her remedy is to move in Family Court to vacate or resettle the order (see Matter of Polyak v Toyber, 2 AD3d at 642-643; Matter of Ras v Rupp, 295 AD2d 892, 893 [2002]; Matter of Brouwer v Pacicca, 291 AD2d at 449; Nayman v Remsen Apts., 125 AD2d 378, 382 [1986]).

Since the mother moved for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1, her contention that she is entitled to such an award pursuant to Domestic Relations Law § 237 (b) is not properly before this Court. Moreover, her contention is based on matter that is dehors the record. Prudenti, P.J., Miller, Dillon and McCarthy, JJ., concur.