
    In the Matter of Denise Foster, Appellant, v James B. King, Respondent.
    [803 NYS2d 473]
   Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered May 7, 2004 in a proceeding pursuant to Family Court Act article 6. The order dismissed without prejudice the petition seeking modification of a prior custody order.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner appeals from an order dismissing without prejudice her petition seeking modification of a prior custody order. During the pendency of the appeal, petitioner filed a petition seeking the same relief, thus rendering the appeal moot (see Gelbard v Genesee Hosp., 255 AD2d 882 [1998], lv dismissed in part and denied in part 93 NY2d 916 [1999]; see also Matter of Coakley v Sanders, 247 AD2d 648 [1998]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Smith, JJ.  