Matter of Foster v King
2005 NY Slip Op 08515 [23 AD3d 1109]
November 10, 2005
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 18, 2006
Matter of Denise Foster v James B. King
In the Matter of Denise Foster, Appellant, v James B. King, Respondent.
—[*1]Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered May 7, 2004 in a proceeding pursuant to Family Court Act article 6. The order dismissed without prejudice the petition seeking modification of a prior custody order.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum: Petitioner appeals from an order dismissing without prejudice her petition seeking modification of a prior custody order. During the pendency of the appeal, petitioner filed a petition seeking the same relief, thus rendering the appeal moot (see Gelbard v Genesee Hosp., 255 AD2d 882 , lv dismissed in part and denied in part 93 NY2d 916 ; see also Matter of Coakley v Sanders, 247 AD2d 648 ). Present—Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Smith, JJ.