Matter of Price v Jenkins

Matter of Matter of Price v Jenkins 2012 NY Slip Op 06962 Decided on October 17, 2012 Appellate Division, Second 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 October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2011-05972
(Docket No. V-2013-00/11O)

[*1]In the Matter of Deirdre M. Price, appellant,

v

Howard Jenkins, respondent.




Ralph R. Carrieri, Mineola, N.Y., for appellant.
Thomas E. Draycott, Brightwaters, N.Y., attorney for the child.


DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Eisman, J.), dated June 2, 2011, which, sua sponte, enjoined her from filing any further petitions against the father without permission of the court.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal and leave to appeal is granted (see Family Ct Act § 1112[a]); and it is further,

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements.

While public policy generally mandates free access to the courts (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404), "a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will" (Matter of Wieser v Wieser, 83 AD3d 950, 950; see Matter of Reiss v Giraldo, 77 AD3d 759, 759; Matter of Molinari v Tuthill, 59 AD3d 722, 723; Matter of Pignataro v Davis, 8 AD3d 487, 489). Under the circumstances presented here, the mother did not abuse the judicial process by filing two petitions to modify a custody and visitation order (see Matter of Wieser v Wieser, 83 AD3d 950; compare Matter of Manwani v Manwani, 286 AD2d 767). Accordingly, the Family Court improvidently exercised its discretion in enjoining the mother from filing any further petitions against the father without permission of the court.

Since the mother did not appeal from the order dismissing her petitions, her remaining contentions are not properly before this Court.
DILLON, J.P., BALKIN, AUSTIN and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court