        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

743
CAF 14-00869
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF RONALD D. ROSSBOROUGH,
PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

HALA Y. ALATAWNEH, RESPONDENT-RESPONDENT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR
PETITIONER-APPELLANT.

JOSEPH P. MILLER, CUBA, FOR RESPONDENT-RESPONDENT.

PETER J. DEGNAN, ATTORNEY FOR THE CHILD, ALFRED.

DAVID E. CODDINGTON, ATTORNEY FOR THE CHILDREN, HORNELL.


     Appeal from an order of the Family Court, Allegany County (Thomas
P. Brown, J.), entered March 27, 2014 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petitions.

     It is hereby ORDERED that said appeal insofar as it concerns the
older stepchild is unanimously dismissed and the order is affirmed
without costs.

     Memorandum: Petitioner father appeals from an order denying his
petitions for visitation with his two former stepchildren, for
modification of the visitation order with respect to his child with
respondent mother, and for violation of visitation orders. The
father’s contention regarding visitation with the older stepchild is
moot because he is now 18 years old (see Matter of Woodruff v Adside,
26 AD3d 866, 866). The father contends that Family Court erred in
determining that visitation with the younger stepchild was not in her
best interests. We conclude that the court properly dismissed the
petition seeking visitation with the younger stepchild, but our
reasoning differs from that of the court. We conclude that the father
lacks standing to seek visitation with the younger stepchild (see
Matter of Reeves v Erie County Dept. of Social Servs., 96 AD3d 1471,
1471; Matter of Multari v Sorrell, 287 AD2d 764, 765-766). The
father’s contention that the doctrine of judicial estoppel applies
here is not properly before us because it is raised for the first time
in his reply brief (see Matter of Deuel v Dalton, 33 AD3d 1158, 1159;
Matter of Yorimar K.-M., 309 AD2d 1148, 1149).

     Contrary to the father’s contention, the court properly
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                                                         CAF 14-00869

determined that he failed to show a change in circumstances to warrant
a modification of the visitation order and failed to establish that
the mother willfully violated a clear mandate of the visitation orders
(see Matter of Sorokina v Moody, 91 AD3d 1307, 1307).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
