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

32
CAF 14-02151
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.


IN THE MATTER OF ANNABELLA B.C.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,        MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

SANDRA L.C., RESPONDENT-APPELLANT.


ALAN BIRNHOLZ, LAKE WORTH, FLORIDA, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID E. BLACKLEY, ATTORNEY FOR THE CHILD, LOCKPORT.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered August 18, 2014 in a proceeding pursuant to
Family Court Act article 10. The order denied respondent’s motion to
vacate an order of fact-finding and disposition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Erie County, for further proceedings in
accordance with the following memorandum: Respondent mother appeals
from an order denying her motion to vacate an order of fact-finding
and disposition, which was entered on the consent of the parties. We
agree with the mother that Family Court erred in denying the motion on
the sole ground that a direct appeal from that order was pending. It
is well settled that “[n]o appeal lies from an order entered upon the
parties’ consent” (Matter of Bambi C., 238 AD2d 942, 942-943, lv
denied 90 NY2d 805) and, indeed, we dismissed the mother’s appeal from
the consent order for that very reason (Matter of Annabella B.C.
[Sandra L.C.], 129 AD3d 1550). Thus, contrary to the court’s
determination, the mother’s sole remedy was “ ‘to move in Family Court
to vacate the order, at which time [she] [could] present proof in
support of [her] allegations of duress, proof which is completely
absent from this record’ ” (Matter of Andresha G., 251 AD2d 1005,
1005; see Matter of Polyak v Toyber, 2 AD3d 642, 643; Bambi C., 238
AD2d at 943). We therefore reverse the order and remit the matter to
Family Court for further proceedings on the motion.




Entered:    February 11, 2016                   Frances E. Cafarell
                                                Clerk of the Court
