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

IN RE: Sally MITCHELL, Petitioner, v. Darcy REGAN, Respondent, Rodney P. McCray, Appellant.


Decided: December 21, 2017

Before:  Peters, P.J., Garry, Clark, Aarons and Pritzker, JJ. Sandra M. Colatosti, Albany, for appellant. Robert N. Gregor, Lake George, attorney for the child.


Appeals (1) from an order of the Supreme Court (Lawliss, J.), entered March 11, 2016 in Essex County, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject children, and (2) from the orders of protection entered therein.

Respondent Rodney P. McCray (hereinafter the father) and respondent Darcy Regan are the parents of two children (born in 2013 and 2015).  In December 2015, several petitions were filed, including one by petitioner, the children's paternal grandmother, seeking custody of the children.  During the course of the proceedings, the parties, with the assistance of counsel, consented to a disposition of all pending matters.  In accordance with their stipulation, Supreme Court entered an order providing for sole legal and physical custody of the children to the grandmother and supervised visitation to the parents, and orders of protection were issued in favor of the children and the grandmother.  The father appeals.

Because the orders from which the father appeals were entered on consent, they are not appealable (see Matter of Stopper v. Stopper, 145 A.D.3d 1329, 1330, 42 N.Y.S.3d 872 [2016];  Matter of Rumpel v. Powell, 129 A.D.3d 1344, 1345, 14 N.Y.S.3d 167 [2015];  Matter of Selena O. [Trisha O.–Steven R.], 84 A.D.3d 1648, 1648, 923 N.Y.S.2d 363 [2011] ).  Further, the father's claim that his consent was not knowing or voluntary is not properly before us, as he failed to make an application in Supreme Court to vacate the underlying orders (see Matter of Stopper v. Stopper, 145 A.D.3d at 1330, 42 N.Y.S.3d 872;  Matter of Rumpel v. Powell, 129 A.D.3d at 1345, 14 N.Y.S.3d 167;  Matter of DeFrancesco v. Mushtare, 77 A.D.3d 1079, 1080, 908 N.Y.S.2d 889 [2010] ).  Accordingly, the appeals must be dismissed.

ORDERED that the appeals are dismissed, without costs.

Peters, P.J.

Garry, Clark, Aarons and Pritzker, JJ., concur.

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