Appellate Division: Second Judicial Department

M74638

S/cb

ROBERT A. LIFSON, J.P.

ANITA R. FLORIO

DANIEL D. ANGIOLILLO

ARIEL E. BELEN, JJ.

2008-06411, 2008-06412, 2008-06413, 2008-06601 Timothy Makara, respondent, v Kelly Makara, appellant. (Index No. 7305/06)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated August 8, 2008, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant on appeals from three orders of the Supreme Court, Dutchess County, two dated April 8, 2008 (Appellate Division Docket Nos. 2008-06411, 2008-06412), and one dated June 10, 2008 (Appellate Division Docket No. 2008-06601), respectively, and a judgment of the same court dated June 10, 2008 (Appellate Division Docket No. 2008-06413), inter alia, to stay enforcement of the order dated June 10, 2008, and all proceedings in the above-entitled action pending hearing and determination of the appeals. Cross motion by the respondent, inter alia, to dismiss the appeals from the orders dated April 8, 2008, on the ground that they were superceded by the judgment dated June 10, 2008, to dismiss the appeal from the judgment dated June 10, 2008, on the ground that it was entered on the consent of the appellant, and is therefore not appealable, and for an award of costs and an attorney's fee. Application by the attorney for the subject children for an award of costs and an attorney's fee.

Upon the papers filed in support of the motion, the cross motion, and the application, and the papers filed in opposition thereto, it is

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated April 8, 2008 (Appellate Division Docket No. 2008-06412), which granted the respondent's motion in limine is granted, as the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241), and the branch of the cross motion which is to dismiss the appeal from the judgment (Appellate Division Docket No. 2008-06413) is granted, as no appeal lies from a judgment that was entered on the consent of the appellant (see CPLR 5511), and the appeal from the order dated April 8, 2008, which granted the respondent's motion in limine, and the appeal from the judgment are dismissed, without costs or disbursements; and it is further,

ORDERED that the branch of the cross motion which is for an award of costs and an attorney's fee is denied without prejudice to seeking the same relief in the Supreme Court, Dutchess County; and it is further,

ORDERED that the cross motion is otherwise denied; and it is further,

ORDERED that the motion is denied; and it is further,

ORDERED that the application is denied without prejudice to seeking the same relief in the Supreme Court, Dutchess County.

LIFSON, J.P., FLORIO, ANGIOLILLO and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court