Warme v. Banas

Warme v Banas (2021 NY Slip Op 07399) Warme v Banas 2021 NY Slip Op 07399 Decided on December 23, 2021 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 23, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ. 948 CA 20-00963 [*1]SCOTT C. WARME, PLAINTIFF-APPELLANT, v SAMANTHA M. BANAS, DEFENDANT-RESPONDENT. JACKSON & BALKIN, LOCKPORT (NICHOLAS D. D'ANGELO OF COUNSEL), FOR PLAINTIFF-APPELLANT. CAMILLE S. BROWN, NIAGARA FALLS, ATTORNEY FOR THE CHILD. Appeal from a judgment of the Supreme Court, Niagara County (Paula L. Feroleto, J.), entered September 10, 2020. The judgment, inter alia, dissolved the marriage between the parties. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: In this divorce action, plaintiff husband appeals from an order that, inter alia, granted the cross motion of defendant wife insofar as it sought an order dismissing that portion of the complaint seeking "custody and/or visitation" with respect to the subject child. Although the order is subsumed in the final judgment of divorce subsequently entered and the appeal properly lies from the judgment, we exercise our discretion to treat the notice of appeal as valid and deem the appeal taken from the judgment (see CPLR 5520 [c]; Antinora v Antinora, 125 AD3d 1336, 1337 [4th Dept 2015]; Hughes v Hughes, 84 AD3d 1745, 1745-1746 [4th Dept 2011]), and we affirm for reasons stated in the decision at Supreme Court underlying the order. Entered: December 23, 2021 Ann Dillon Flynn Clerk of the Court