Adler v. Gordon

243 A.D.2d 365, 664 N.Y.S.2d 546, 1997 N.Y. App. Div. LEXIS 10321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1997
• Status: Published

Opinion

Order, Family Court, New York County (Rhoda Cohen, J.), entered on or about October 3, 1996, which, in a proceeding by petitioners for visitation with their grandchild, granted respondents parents’ motion to dismiss the petition for lack of standing, unanimously affirmed, without costs.

Petitioners waived their right to contest late service of the motion to dismiss by opposing it on the merits (Todd v Gull Contr. Co., 22 AD2d 904). In any event, were we to review the issue, we would find that petitioners were not prejudiced as the court’s scheduling of the hearing was the result of their own initial insistence on an immediate hearing date (see, Glasz v Glasz, 173 AD2d 937). Concerning the merits, the record supports Family Court’s finding that respondents’ decision not to let petitioners see the child was based on legitimate concerns for the welfare of the child (see, Matter of Coulter v Barber, 214 ; Matter of Luma v Kawalchuk, 240 AD2d 896). Concur—Sullivan, J. P., Milonas, Tom, Mazzarelli and Andrias, JJ.