In the Matter of a Proceeding under Article 6 of the Family Court Act. Nicholas Wayne Vitucci

Motion No: M-4101

Slip Opinion No: 2018 NYSlipOp 81979(U)

Decided on August 24, 2018

Appellate Division, First Department, Motion Decision

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

This motion is uncorrected and is not subject to publication in the Official Reports.

August 24, 2018

In the Matter of a Proceeding under

Article 6 of the Family Court Act.

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Nicholas Wayne Vitucci,

Petitioner,

v Docket No. V-08793-18/18A

Mehrak Radparver,

Respondent.

Respondent mother having moved for leave to appeal from the interim order of the Family Court, Bronx County, entered on or about May 4, 2018, which continued an earlier order of custody and visitation on consent by the Family Court, Westchester County dated January 23, 2012, and a modification order dated April 9, 2018, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied in its entirety.All concur except Gesmer, J., who dissents as follows:

GESMER, J. (dissenting) I respectfully dissent and would grant petitioner's motion for leave to appeal the order of May 4, 2018, as it would be an appropriate exercise of our discretion to do so (Family Ct Act § 1112). First, the motion was unopposed, even though both the father's attorney and the child's attorney were served. Second, to the extent that the motion is denied on the basis that the Notice of Appeal was not timely, there is no indication of this

in the record before us, and by denying the motion on that basis, we deprive petitioner of the opportunity to show that it was timely. Third, the May 4 order appears to be in derogation of the mother's rights as the child's sole legal custodian, in that it directed the mother to enroll the child at a particular school. Finally, the fact that a trial is scheduled to commence on August 24 is not a reason to deny the motion, as the commencement of the trial will not necessarily give the mother timely relief. ENTERED: August 24, 2018

_____________________ DEPUTY CLERK

The following order was entered and filed on August 24, 2018:

PRESENT: Hon. David Friedman Justice Presiding, Barbara R. Kapnick Marcy L. KahnEllen Gesmer Cynthia S. Kern, Justices

M-4101