Matter of Daryl D. v Shameeka W.

Matter of Daryl D. v Shameeka W. 2018 NY Slip Op 03107 Decided on May 1, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2018
Renwick, J.P., Tom, Andrias, Webber, Kahn, JJ.
6417

[*1]In re Daryl D., Petitioner-Appellant,

v

Shameeka W., and Another, Respondents-Respondents.

Geoffrey P. Berman, Larchmont, for appellant.

Order, Family Court, New York County (Gail A. Adams, Referee), entered on or about April 12, 2016, which, sua sponte, dismissed the petition, with prejudice, for lack of jurisdiction, unanimously modified, on the law, the decretal language "with prejudice" and "for lack of jurisdiction" deleted, and otherwise affirmed, without costs.

As the Family Court did not reach the merits of the petition, it erred in dismissing the proceeding with prejudice (Matter of Mildred S.G. v Mark G., 62 AD3d 460, 462 [1st Dept 2009]; Family Court Act §§ 651; 652).

Petitioner should be permitted to re-file the petition in Kings County, provided he include both the Administration for Children's Services and the attorney for the child as parties in the next proceeding, as directed in the underlying custody order.

While the proceeding would be more appropriately held in Kings County, it is not apparent from the record before us that the Family Court, New York County, lacks jurisdiction, particularly in light of the child's residence in New York County. Thus, the proceeding is dismissed without prejudice and not for lack of jurisdiction.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 1, 2018

CLERK