In re Dana XX.

Apr 27, 2006
Versions:28 A.D.3d 1025
814 N.Y.S.2d 760
Spain, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered March 29, 2005, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, for an order of protection.

The children who are the subject of the underlying Family Ct Act article 10 proceeding were born to respondent (hereinafter the mother) in 1993, 1995 and 1997. The mother and Brian YY., a nonparty, have a child together who is not the subject of this appeal. Petitioner filed a neglect petition against the mother, alleging, among other things, domestic violence and substance abuse by Brian YY. in the home. Family Court sustained the petition but suspended the judgment on numerous conditions, including that the mother consent to an order of protection requiring her to prevent contact between Brian YY. and the children named in the petition. Brian YY. now appeals from the order of protection that ensued.

Appellate counsel for Brian YY. seeks to be relieved of his assignment on the ground that there are no nonfrivolous issues to pursue on appeal (see Anders v California, 386 US 738 [1967]; People v Stokes, 95 NY2d 633 [2001]). Upon our review of the *1026record and submissions, we agree. With respect to the protective order, Brian YY. was not a party to that proceeding, did not seek to intervene despite having notice of the proceeding, and the order does not direct him to do or refrain from doing anything. Moreover, the order was issued with the consent of the children’s mother, and she has'not appealed from that order. Under these circumstances, Brian YY. is not an aggrieved party and, accordingly, has no basis to appeal from said order of protection (see CPLR 5511; Matter of William XX. v Broome County Dept. of Social Servs., 11 AD3d 735, 736 [2004]).

Crew III, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the appeal is dismissed, without costs, and application to be relieved of assignment granted.