Matter of Ryon J.G. v Carlton D.S.

Matter of Ryon J.G. v Carlton D.S. 2005 NY Slip Op 08410 [23 AD3d 1042] November 10, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Ryon J.G., Appellant, v Carlton D.S., Respondent.

—[*1]Appeal from an order of the Family Court, Onondaga County (William J. Burke, J.H.O.), entered July 26, 2004 in a proceeding pursuant to Family Court Act article 5. The order dismissed the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Onondaga County, for further proceedings on the petition.

Memorandum: The record before us contains no order of reference, nor does it indicate that the parties consented to submit the proceeding to a Judicial Hearing Officer (JHO). We therefore conclude that the JHO was without authority to dismiss the petition (see Nguyen v Prime Residential Bronx R&R V, 307 AD2d 201 [2003]; Fernald v Vinci, 303 AD2d 547 [2003]; Matter of Myndi O. v Ronald K., 180 Misc 2d 608, 611-612 [1999]). Thus, we reverse the order, deny respondent's motion to dismiss the petition, reinstate the petition, and remit the matter to Family Court for further proceedings on the petition. Present—Green, J.P., Gorski, Smith, Lawton and Hayes, JJ.