Majority
Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered May 13, 1993, which, in a proceeding pursuant to Family Court Act article 6, granted respondent’s motion to dismiss the petition for failure to prosecute.
Petitioner failed to appear for a court hearing, claiming through his attorney that he had the flu. The attorney requested an adjournment. Respondent’s attorney moved to dismiss the proceeding for failure to prosecute. The motion was granted by Family Court without prejudice and petitioner now appeals.
The record reveals that after the order of dismissal, a new order to show cause was issued against respondent and a new petition for custody was filed by petitioner. The matter was set down for trial on July 5, 1994. Inasmuch as the order of dismissal was without prejudice and petitioner has reinstituted a new proceeding seeking the same relief that he sought in the prior proceeding, petitioner’s appeal of the prior order of dismissal is moot.
Mercure, J. P., Crew III and White, JJ., concur. Ordered that the appeal is dismissed, without costs.