Matter of Kimberly M.

Matter of Kimberly M. (Nancy L.) 2009 NY Slip Op 08501 [67 AD3d 562] November 19, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Kimberly M., an Infant. Nancy L., Appellant. Administration for Children's Services, Respondent.

—[*1] Louise Belulovich, New York, for appellant.

Appeal from order, Family Court, New York County (Susan M. Doherty, Ref.), entered on or about May 8, 2008, which, inter alia, directed a trial discharge of the subject child by petitioner agency to the nonrespondent father, unanimously dismissed, without costs, as moot.

The appeal is moot because the May 8, 2008 order was superseded by an order of custody and visitation, same court and Referee, entered on or about June 30, 2009, on the stipulation of respondent mother, petitioner agency, the law guardian, and the nonrespondent father, awarding custody to the father (see e.g. Matter of Breeyanna S., 52 AD3d 342 [2008], lv denied 11 NY3d 711 [2008]).

Were we to consider the merits, we would find that the Referee's determination that the trial discharge to the father was in the child's best interest was amply supported by the evidence that while the mother had relapsed in her addiction, the father had remained clean, that while the mother was ineligible for housing assistance, the father was eligible, and that while the mother was unemployed, the father had been gainfully employed for a year (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]). Concur—Andrias, J.P., Sweeny, Nardelli, Catterson and DeGrasse, JJ.