Matter of Simmons v Ford

Matter of Simmons v Ford 2018 NY Slip Op 05176 Decided on July 11, 2018 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 July 11, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
2017-05585
(Docket No. U-16301-15)

[*1]In the Matter of Latasha Beauford Simmons, petitioner,

v

John Aaron Ford, respondent-respondent; Malachi S. (Anonymous), nonparty-appellant.

Karen P. Simmons, Brooklyn, NY (Janet Neustaetter and Barbara H. Dildine of counsel), attorney for the child, the nonparty-appellant Malachi S.

Fredericka P. Bashir, Brooklyn, NY, for respondent-respondent.

Zachary W. Carter, Corporation Counsel, New York, NY (Aaron Bloom and Daniel Matza-Brown of counsel), for petitioner.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 5-B, the child appeals from an order of the Family Court, Kings County (Sharon A. Bourne-Clarke, J.), dated April 17, 2017. The order directed the dismissal of the mother's petition for failure to prosecute.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith.

In this child support and paternity proceeding, the mother, who resides in Pennsylvania, failed to appear on April 17, 2017, a date scheduled for a continued equitable estoppel hearing. Despite the fact that the mother had appeared on all prior court dates, and was in the middle of her testimony at the hearing, the Family Court denied the child's request for an adjournment, and instead directed dismissal of the petition for failure to prosecute. The child, Malachi S., appeals.

Initially, we reject the respondent's contention that the appeal must be dismissed on grounds of aggrievement and appealability (see CPLR 5511).

Here, as the child and the mother correctly contend, the request for an adjournment was reasonable and there was no indication of intentional default or willful abandonment. Under these circumstances, the Family Court improvidently exercised its discretion in directing the dismissal of the petition for failure to prosecute rather than granting the child's request for an adjournment (see Matter of Brudasca v Cottone, 110 AD3d 1067; Pileri v Pileri, 218 AD2d 691). Accordingly, the matter must be remitted to the Family Court, Kings County, for a continued equitable estoppel hearing and for a determination thereafter (see Matter of Tralisa R. v Max S., 145 AD3d 727).

DILLON, J.P., ROMAN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court