Barry v Barry

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Barry v Barry 2009 NY Slip Op 02310 [60 AD3d 882] March 24, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 6, 2009

Caroline Barry, Respondent,
v
Kevin A. Barry, Appellant.

—[*1] Heather G. Kress, Huntington, N.Y. (James J. Kelly of counsel), for appellant.

Cohen Hennessey Bienstock & Rabin P.C., New York, N.Y. (Patricia Hennessey of counsel), for respondent.

In a matrimonial action in which the parties' marriage was annulled by a judgment entered November 16, 2000, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated May 3, 2006, as, upon the plaintiff's application, modified his visitation rights and, upon consent, assigned a portion of his disability and retirement pension to the plaintiff for the payment of child support.

Ordered that the appeal is dismissed, with costs.

The defendant appeals from those portions of an order of the Supreme Court which assigned a portion of his disability and retirement pension to the plaintiff for the payment of child support, and modified his visitation rights. However, that portion of the order concerning the assignment was entered upon the defendant's consent, and no appeal lies from an order entered on consent (see Bahr v Bahr, 105 AD2d 725 [1984]; Baecher v Baecher, 95 AD2d 841, 842 [1983]). The modification of the defendant's visitation rights did not decide a motion made on notice, and no appeal lies as of right from such an order (see CPLR 5701 [a] [2]). Nor has leave to appeal been granted (see CPLR 5701 [c]). To obtain appellate review, the defendant must move to vacate or modify the order, and appeal, if necessary, from the resulting order (see Sholes v Meagher, 100 NY2d 333 [2003]; Egwuonwu v Simpson, 4 AD3d 500 [2004]; Koczen v VMR Corp., 300 AD2d 285 [2002]). Rivera, J.P., Ritter, Miller and Chambers, JJ., concur. [*2]

Motion by the plaintiff, on an appeal from an order of the Supreme Court, Suffolk County, dated May 3, 2006, inter alia, to dismiss the appeal on the ground that the order was entered upon the appellant's consent or, in the alternative, to strike pages 138 through 153 of the record on appeal on the ground that they contain or refer to material that is dehors the record. By decision and order on motion of this Court dated June 20, 2008 [2008 NY Slip Op 75491(U)], those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition and relation thereto, and upon the argument of the appeal, it is

Ordered that those branches of the motion which were to dismiss the appeal or, in the alternative, to strike pages 138 through 153 of the record on appeal are denied as academic in light of our determination on the appeal from the order. Rivera, J.P., Ritter, Miller and Chambers, JJ., concur.