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

IN RE: David A. MARTIN, Respondent, v. Lisa L. (Pickering) ROLLEY, Appellant.

Decided: October 27, 2005

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Thomas G. Soucia, Franklin County Department of Social Services, Malone, for appellant. David E. LaPlant, Malone, for respondent.

Appeal from an order of the Family Court of Franklin County (Potter, J.), entered August 25, 2004, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to direct respondent to reimburse petitioner for certain child-care expenses.

The parties are the parents of one child, of whom respondent has primary custody.   In 2003, petitioner commenced this proceeding alleging that respondent had violated the parties' order of support by refusing to reimburse him for her pro rata share of the work-related child-care expenses that he incurred while the child was in his care.1  Following a hearing, a Support Magistrate determined that, although not specifically provided for in either the parties' support order or the Child Support Standards Act (see Family Ct. Act § 413[1][c][4] ), respondent was nevertheless required to reimburse petitioner for his work-related child-care expenses in the interest of equity.   That determination was ultimately confirmed by Family Court by order entered August 25, 2004.   Respondent now appeals.

By order entered April 22, 2005, Family Court, among other things, vacated the August 2004 order from which respondent appeals.   Inasmuch as an appeal from an order which has been vacated is precluded, the instant appeal must be dismissed (see Scally v. Scally, 151 A.D.2d 869, 871, 542 N.Y.S.2d 844 [1989];  Matter of Schweig v. Waltzer, 279 App.Div. 990, 112 N.Y.S.2d 495 [1952];  see also Clissuras v. Concord Vil. Owners, 210 A.D.2d 370, 372, 620 N.Y.S.2d 116 [1994], appeals dismissed 85 N.Y.2d 1028, 631 N.Y.S.2d 283, 655 N.E.2d 397 [1995], 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766 [1995] ).

ORDERED that the appeal is dismissed, without costs.


1.   It appears as though respondent also commenced a proceeding seeking reimbursement from petitioner for certain medical expenses incurred while the child was in her care.   That petition was dismissed by Family Court and is not the subject of this appeal.



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