SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
949
CAF 12-01770
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
IN THE MATTER OF DAWN BENZIN, PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
TIMOTHY KUTY, SR., RESPONDENT-RESPONDENT.
LOVALLO & WILLIAMS, BUFFALO (TIMOTHY R. LOVALLO OF COUNSEL), FOR
PETITIONER-APPELLANT.
TIMOTHY KUTY, SR., RESPONDENT-RESPONDENT PRO SE.
ANTHONY J. CERVI, ATTORNEY FOR THE CHILD, BUFFALO.
Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered July 31, 2012 in a proceeding pursuant to Family
Court Act article 6. The order dismissed the petition.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this custody proceeding pursuant to Family Court
Act article 6, petitioner mother appeals from an order dismissing her
petition to modify her visitation rights as set forth in a prior
order. We reject the mother’s contention that Family Court erred in
dismissing her petition without conducting a hearing. The record
establishes that, while this proceeding was pending, an order was
entered in Surrogate’s Court granting a petition filed by respondent
father and his wife seeking adoption of the subject child by the
father’s wife. As the Attorney for the Child points out in his brief,
Domestic Relations Law § 117 (1) (a) provides that “[a]fter the making
of an order of adoption the birth parents of the adoptive child shall
be relieved of all parental duties toward and of all responsibilities
for and shall have no rights over such adoptive child” except under
certain limited circumstances, none of which applies here (emphasis
added). Thus, upon entry of the adoption order, the mother’s
“parental rights ceased, and [s]he lacked standing to prosecute a . .
. visitation petition regarding the subject child” (Matter of Kevin W.
v Monique T., 38 AD3d 672, 673, lv denied 9 NY3d 803).
Although it appears from the record that the father and his wife
failed to provide notice of the adoption proceeding to the mother as
required by Domestic Relations Law § 111 (3) (a), we conclude that
Family Court lacked authority to vacate or ignore the adoption order
on that or any other ground, inasmuch as that court could “not
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CAF 12-01770
arrogate to [itself] powers of appellate review” with respect to the
adoption order (Dain & Dill v Betterton, 39 AD2d 939, 939). If the
mother seeks relief from the adoption order, she must seek such relief
in “[t]he court which rendered [that] . . . order” (CPLR 5015 [a]; see
generally Nina M. v Otsego County Social Servs. Dept., 201 AD2d 788,
790, lv denied 83 NY2d 755).
Entered: September 27, 2013 Frances E. Cafarell
Clerk of the Court