BROWN v. GUTIEZ (2025)

Appeal from temporary order, Supreme Court, New York County (Kathleen Waterman–Marshall, J.), entered July 8, 2024, which, after a hearing at the court's direction, modified the prior order regarding parenting time dated November 10, 2021 to expand the father's parenting time with the subject child, unanimously dismissed, without costs, as taken from a nonappealable order.

The order modifying the father's parenting time is not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2][v];  Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003]).  The proper procedure for seeking review of such an order is to first move to vacate the order, and then take an appeal as of right in accordance with CPLR 5701(a)(3) from the subsequent order, based on the record developed on the motion (see Sholes, 100 N.Y.2d at 335, 763 N.Y.S.2d 522, 794 N.E.2d 664).  Nor did the order grant such extraordinary relief that the notice of appeal should be deemed a motion for leave to appeal (see Umeh v. New York City Health & Hosps. Corp., 205 A.D.3d 599, 601, 169 N.Y.S.3d 579 [1st Dept. 2022]).  In any event, a review of the record shows that the court properly ordered the temporary visitation schedule pending the custody trial.