Rodriguez v. Kennebrew

Appellate Division of the Supreme Court of New York

Rodriguez v. Kennebrew

309 A.D.2d 997, 766 N.Y.S.2d 149, 2003 N.Y. App. Div. LEXIS 10920

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 23, 2003

StatusPublished

This text of 309 A.D.2d 997 (Rodriguez v. Kennebrew) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rodriguez v. Kennebrew, 309 A.D.2d 997, 766 N.Y.S.2d 149, 2003 N.Y. App. Div. LEXIS 10920 (N.Y. Ct. App. 2003).

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Opinion

Lahtinen, J.

Appeal from an order of the Family Court of Broome County (Ray, J.), entered June 14, 2002, which, inter alia, granted respondent’s application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties’ child.

During the course of this custody proceeding it was alleged that petitioner, who was on probation for a drug offense, had sold drugs in the presence of his young son. Soon, additional allegations were being asserted by both parties and, eventually, a proposal was made that petitioner be granted supervised visitation, that he submit to random drug testing and that he be permitted to reapply regarding custody/visitation after six months without the necessity of showing changed circumstances. Petitioner, respondent and the Law Guardian agreed to the proposal on the record and, in June 2002, Family Court issued an order incorporating the terms of the agreement. Petitioner appeals.

Petitioner contends that shortly after stipulating to the [998]*998proposed arrangement, he attempted to withdraw his consent and Family Court erred in not permitting him to do so. He further contends that he was unduly coerced into accepting the proposal. No exception was made to the agreement on the record and no motion was made to set aside the agreement or vacate the resulting order. In the absence of a motion to set aside the agreement or vacate the order, the issues asserted by petitioner are not properly before us and, thus, the appeal must be dismissed (see Matter of Farquhar v Pitt, 192 AD2d 806, 806 [1993]; see also Matter of Andresha G., 251 AD2d 1005 [1998]; Hagfors v Hagfors, 200 AD2d 873, 874 [1994]).

Cardona, P.J., Mercure, Crew III and Peters, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Lahtinen, J.

Appeal from an order of the Family Court of Broome County (Ray, J.), entered June 14, 2002, which, inter alia, granted respondent’s application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties’ child.

During the course of this custody proceeding it was alleged that petitioner, who was on probation for a drug offense, had sold drugs in the presence of his young son. Soon, additional allegations were being asserted by both parties and, eventually, a proposal was made that petitioner be granted supervised visitation, that he submit to random drug testing and that he be permitted to reapply regarding custody/visitation after six months without the necessity of showing changed circumstances. Petitioner, respondent and the Law Guardian agreed to the proposal on the record and, in June 2002, Family Court issued an order incorporating the terms of the agreement. Petitioner appeals.

Petitioner contends that shortly after stipulating to the [998]*998proposed arrangement, he attempted to withdraw his consent and Family Court erred in not permitting him to do so. He further contends that he was unduly coerced into accepting the proposal. No exception was made to the agreement on the record and no motion was made to set aside the agreement or vacate the resulting order. In the absence of a motion to set aside the agreement or vacate the order, the issues asserted by petitioner are not properly before us and, thus, the appeal must be dismissed (see Matter of Farquhar v Pitt, 192 AD2d 806, 806 [1993]; see also Matter of Andresha G., 251 AD2d 1005 [1998]; Hagfors v Hagfors, 200 AD2d 873, 874 [1994]).

Cardona, P.J., Mercure, Crew III and Peters, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Bluebook (online)

309 A.D.2d 997, 766 N.Y.S.2d 149, 2003 N.Y. App. Div. LEXIS 10920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-kennebrew-nyappdiv-2003.

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