Matter of Kevin A.

Matter of Kevin A. 2009 NY Slip Op 03718 [62 AD3d 694] May 5, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 1, 2009

In the Matter of Kevin A., a Person Alleged to be a Juvenile Delinquent, Respondent; Presentment Agency, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellant.

Richard J. Cardinale, Brooklyn, N.Y., for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from an order of the Family Court, Queens County (Bogacz, J.), dated September 15, 2008, which, after a hearing, granted that branch of the respondent's renewed motion which was to dismiss the petition for facial insufficiency, and dismissed the petition without prejudice.

Ordered that the order is reversed, on the law and on the facts, without costs or disbursements, that branch of the respondent's renewed motion which was to dismiss the petition for facial insufficiency is denied, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.

Contrary to the determination of the Family Court, there is no basis to conclude, based upon facts adduced at the hearing held on September 11, 2008, in the companion case of Matter of Brian Z. (62 AD3d 718 [2009] [decided herewith]), that the sworn statement contained in the petition describing the respondent's conduct would "suggest defiance of the accepted laws of physics, such that [the Family Court should have] dismissed that petition for facial insufficiency." Therefore, it was error for the court to have dismissed the petition in the instant proceeding on that basis.

The petitioner's remaining contentions are without merit. Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.