February 3, 2006.
Appeal from an order of the Family Court, Monroe County (Gail A. Donofrio, J.), entered August 26, 2003 in a proceeding pursuant to Family Court Act article 10. The order denied the application of respondent James B. for the return of his child pursuant to Family Court Act § 1028.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR RESPONDENT-APPELLANT.
DANIEL M. DE LAUS, COUNTY ATTORNEY, ROCHESTER (PAUL N. HUMPHREY OF COUNSEL), FOR PETITIONER-RESPONDENT.
Present: Pigott, Jr., P.J., Hurlbutt, Gorski, Green and Hayes, JJ.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum: Respondent father appeals from an order denying his application for the return of his child pursuant to Family Court Act § 1028. The appeal must be dismissed as moot, however, in view of the fact that Family Court, upon consent of the parties, adjourned the matter in contemplation of dismissal of the underlying amended neglect petition ( see generally Matter of Jabarry W., 24 AD3d 218; Matter of Melody B., 234 AD2d 1005, lv dismissed 90 NY2d 888; Matter of Terrell H., 197 AD2d 372, 373).