Alberry v. Alberry

—Order unanimously affirmed without costs. Memorandum: Family Court had the authority to grant petitioner father sole custody of the parties’ child even though petitioner had voluntarily withdrawn his petition for such relief; respondent mother had cross-petitioned for sole custody and thus the issue was properly before the court (see, CPLR 3017 [a]; Matter of Hermans v Hermans, 74 NY2d 876, 878). The court’s award of sole custody to petitioner has a sound and substantial basis in the record (see, Matter of Hilliard v Peroni, 245 AD2d 1107). (Appeal from Order of Jefferson County Family Court, Schwerzmann, J. — Custody.) Present — Green, J. P., Lawton, Pigott, Jr., Callahan and Balio, JJ.