Opinion
2014-01-15
In the Matter of Ahtira Upendran NAIR, respondent, v. Jayakrishnan Krishnan NAIR, appellant.
Cheryl Gammone, Staten Island, N.Y., for appellant. Erin K. Colgan, Staten Island, N.Y., for respondent.
Cheryl Gammone, Staten Island, N.Y., for appellant. Erin K. Colgan, Staten Island, N.Y., for respondent.
, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Jayakrishnan Krishnan Nair appeals from an order of the Family Court, Richmond County (Oakes, Ct. Atty. Ref.), dated May 1, 2012, which denied his motion pursuant to CPLR 5015(a)(1) to vacate a final order of protection of the same court dated January 12, 2012, entered upon his default in appearing at a hearing.
ORDERED that the appeal is dismissed as academic, without costs or disbursements.
In a family offense petition, Athira Upendran Nair (hereinafter the wife) alleged that her spouse, Jayakrishnan Krishnan Nair (hereinafter the husband), committed family offenses against her. Thereafter, the Family Court entered a final order of protection, dated January 12, 2012, in favor of the wife and against the husband. The final order of protection indicates that it was entered on the husband's default in appearing at a hearing and that it was to remain in force until and including January 12, 2013. The husband moved pursuant to CPLR 5015(a)(1) to vacate the order of protection, and the court denied the motion.
In light of the enduring consequences that may potentially flow from a finding that a party committed a family offense, an appeal from an order of protection made on a finding that a party committed a family offense is not academic even though the order of protection has expired ( see e.g. Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793; Matter of DeSouza–Brown v. Brown, 38 A.D.3d 888, 831 N.Y.S.2d 332; Matter of Kravitz v. Kravitz, 18 A.D.3d 874, 875, 796 N.Y.S.2d 376; Matter of Wissink v. Wissink, 13 A.D.3d 461, 462, 787 N.Y.S.2d 60). However, where, as here, the order of protection expired by its own terms, and was not predicated on an adverse finding against the appealing party, an appeal from an order denying a motion to vacate the order of protection must be dismissed as academic ( see Matter of Jurow v. Cahill, 56 A.D.3d 559, 559, 866 N.Y.S.2d 874; Matter of Mayorca–Piccolo v. Piccolo, 37 A.D.3d 913, 913–914, 827 N.Y.S.2d 891; Matter of Schreiber v. Schreiber, 2 A.D.3d 1094, 1095, 768 N.Y.S.2d 683).