Matter of Barbagallo v Cotto-Donis

Matter of Barbagallo v Cotto-Donis 2015 NY Slip Op 07024 Decided on September 30, 2015 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 September 30, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.
2014-08961
(Docket No. O-25249-13)

[*1]In the Matter of Vivian Barbagallo, appellant,

v

Erick Cotto-Donis, respondent.

Heath J. Goldstein, Jamaica, N.Y., for appellant.

Salvatore C. Adamo, New York, N.Y., for respondent.

DECISION & ORDER

Appeal from an order of disposition of the Family Court, Queens County (Dennis Lebwohl, J.), dated September 15, 2014. The order of disposition, after an inquest, dismissed the family offense petition.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8. After the respondent failed to appear on a scheduled court date, the matter proceeded to an inquest. At the conclusion of the inquest, the Family Court dismissed the petition for failure to establish a prima facie case, on the ground that the acts complained of occurred more than eight months prior to the filing of the family offense petition.

In 2010, the Legislature amended Family Court Act § 812(1) to provide that in any "proceeding pursuant to this article, a court shall not . . . dismiss a petition . . . solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition" (L 2010, ch 341, § 5). The Family Court thus erred in dismissing the petition on this basis. Accordingly, we reverse the order of disposition, reinstate the petition, and remit the matter to the Family Court, Queens County, for further proceedings on the petition.

DILLON, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court