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

95
CA 11-00894
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


YVONNE HANDEL, PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

DENNIS P. HANDEL, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


ENOS AND ENOS, ROCHESTER (CHRISTOPHER J. ENOS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (MICHAEL J. PERSONTE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Elma A.
Bellini, J.), entered August 3, 2010. The order, among other things,
denied plaintiff’s motion seeking permission to relocate with the
parties’ child to the State of Florida.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, plaintiff mother appeals from an
order that, inter alia, denied her motion seeking permission for the
parties’ child to relocate with her to Boca Raton, Florida. We
affirm. Supreme Court properly applied the factors set forth in
Matter of Tropea v Tropea (87 NY2d 727, 740-741) in determining that
the mother failed to meet her burden of demonstrating that the
proposed relocation was in the best interests of the child. Inasmuch
as the court’s determination has a sound and substantial basis in the
record, we decline to disturb it (see Matter of Rauch v Keller, 77
AD3d 1409; Matter of Cunningham v Sudduth, 50 AD3d 1623).

     Following the order in appeal No. 1, the mother moved for leave
to renew her prior motion pursuant to CPLR 2221 (e). By the order in
appeal No. 2, the court treated that motion as one to vacate the order
in appeal No. 1 pursuant to CPLR 5015 (a) (2) and denied the motion.
We affirm. The mother’s contention that the court erred in treating
her motion as one to vacate the prior order is unpreserved for our
review inasmuch as she failed to object with respect to that issue
during oral argument on the motion (see generally CPLR 4017).
Further, the court did not abuse its discretion in denying the
mother’s motion for leave to vacate the prior order (see generally
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                                                CA 11-00894

Maddux v Schur, 53 AD3d 738, 739).




Entered:   February 17, 2012           Frances E. Cafarell
                                       Clerk of the Court
