IN RE: ANNABELLA B.C.

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Supreme Court, Appellate Division, Fourth Department.

IN RE: ANNABELLA B.C. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER–RESPONDENT; SANDRA L.C., RESPONDENT–APPELLANT.

CAF 14–02151

Decided: February 11, 2016

PRESENT:  WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ. ALAN BIRNHOLZ, LAKE WORTH, FLORIDA, FOR RESPONDENT–APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

DAVID E. BLACKLEY, ATTORNEY FOR THE CHILD, LOCKPORT.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum:  Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties.  We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending.  It is well settled that “[n]o appeal lies from an order entered upon the parties' consent” (Matter of Bambi C., 238 A.D.2d 942, 942–943, lv denied 90 N.Y.2d 805) and, indeed, we dismissed the mother's appeal from the consent order for that very reason (Matter of Annabella B.C. [Sandra L.C.], 129 AD3d 1550).  Thus, contrary to the court's determination, the mother's sole remedy was “ ‘to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ “ (Matter of Andresha G., 251 A.D.2d 1005, 1005;  see Matter of Polyak v. Toyber, 2 AD3d 642, 643;  Bambi C., 238 A.D.2d at 943).  We therefore reverse the order and remit the matter to Family Court for further proceedings on the motion.

Frances E. Cafarell

Clerk of the Court