Shannon T., Respondent-Appellant. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of JUSTEEN T. Cayuga County Health and Human Services Department, Petitioner-Respondent; Shannon T., Respondent-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND HAYES, JJ. Cynthia B. Brennan, Auburn, for Respondent-Appellant. Thomas P. Stopyra, County Attorney, Auburn (Frederick R. Westphal of Counsel), for Petitioner-Respondent. Richard W. Gunger, Law Guardian, Auburn, for Justeen T.

 This appeal from an order dated April 1, 2004 is dismissed, as that order was superseded by an order dated July 20, 2004 (see Matter of Eric D. [Appeal No. 1], 162 A.D.2d 1051, 559 N.Y.S.2d 156).   We decline to exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see CPLR 5520[c];  cf. Kanter v. Pieri, 11 A.D.3d 912, 783 N.Y.S.2d 181) because the subsequent order was entered upon respondent's consent, and thus no appeal lies from that order (see Matter of Cherilyn P., 192 A.D.2d 1084, 596 N.Y.S.2d 233, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660).

It is hereby ORDERED that said appeal be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: