IN RE: THE APPLICATION OF MARIA J.

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Supreme Court, Appellate Division, Fourth Department.

IN RE: THE APPLICATION OF MARIA J.,

CA 14–01101

Decided: June 19, 2015

PRESENT:  SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. MARK E. LEWIS, CHEEKTOWAGA, FOR PETITIONER–APPELLANT. BERNHARDI & LUKASIK LAW OFFICES, BUFFALO (JOSEPH L. NICASTRO OF COUNSEL), FOR RESPONDENT–RESPONDENT. MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (AVEN RENNIE OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

(PROCEEDING NO. 1.)

FOR AN ORDER OVERRIDING

THE HEALTH CARE DECISIONS OF GUARDIAN AND

SURROGATE PETER J.

(PROCEEDING NO. 2.)

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum:  In this guardianship proceeding pursuant to article 81 of the Mental Hygiene Law, Maria J. (petitioner) contends that Supreme Court erred in directing that her appointment as guardian of her incapacitated son be terminated as of August 15, 2013.   As petitioner acknowledges, however, she consented to that order, as well as to a subsequent order naming her other son as the successor guardian.   The appeal must therefore be dismissed, inasmuch as “ ‘[n]o appeal lies from an order entered by consent upon the stipulation of the appealing party’ “ (Matter of Myers v. Tracy, 93 AD3d 1213, 1214;  see Johnson v. State of New York, 256 A.D.2d 1179, 1179).   Although petitioner contends for the first time on appeal that her consent was not voluntary, the proper procedural vehicle for her to pursue that claim is a motion to vacate the order (see Matter of Michelle F., 280 A.D.2d 969, 969).

Frances E. Cafarell

Clerk of the Court