IN RE: DERRICK “JJ”

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

IN RE: DERRICK “JJ”,1 Alleged to be a Neglected Child. Broome County Department of Social Services, Respondent; Ryan “II”,1 Appellant. (And Another Related Proceeding.)

Decided: November 26, 1997

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and CARPINELLO, JJ. James Rothe, Binghamton, for appellant. Kuredin V. Eytina, Department of Social Services, Binghamton, for respondent. Martha A. Lyons, Law Guardian, Binghamton, for Derrick“ JJ”.

Appeal from an order of the Family Court of Broome County (Hester Jr., J.), entered June 19, 1996, which, inter alia, denied an application by respondent, in a proceeding pursuant to Family Court Act article 10, for an order directing petitioner to return his child to him.

During the pendency of a proceeding concerning the alleged neglect of Derrick “JJ” (hereinafter the child) by his mother, the child was temporarily placed in respondent's custody.   Due to allegations of sexual abuse made against respondent's close friend and babysitter, however, Family Court ordered a change in temporary custody to petitioner.   Respondent then filed a petition pursuant to Family Court Act § 1028 seeking that temporary custody of the child be returned to him, hearings were conducted and, ultimately, Family Court entered an order denying respondent's application.   Respondent then appealed to this court.   During the pendency of the appeal, a neglect proceeding was commenced with regard to respondent and upon respondent's admission, Family Court made a finding of neglect and issued a dispositional order placing the child with petitioner for a period of 12 months.   In view of the subsequent final order placing the child with petitioner, respondent's appeal from the temporary order is moot (see, Matter of Tantalyn TT. [Willie UU.], 115 A.D.2d 799, 800, 495 N.Y.S.2d 740;  see also, Matter of Ballard v. Parker, 232 A.D.2d 740, 741, 648 N.Y.S.2d 481;  cf., Matter of Karen PP. v. Clyde QQ., 197 A.D.2d 753, 602 N.Y.S.2d 709), and we are unpersuaded that the underlying facts bring this matter within the exception to the mootness doctrine (see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876;  Matter of Ballard v. Parker, supra).

ORDERED that the appeal is dismissed, as moot, without costs.

MERCURE, Justice.

CARDONA, P.J., and WHITE, PETERS and CARPINELLO, JJ., concur.

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