Ariola v. DeLaura

51 A.D.3d 1389, 857 N.Y.S.2d 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., R.), entered June 26, 2006 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition and imposed a sanction upon petitioner.

It is hereby ordered that the order so appealed from is unanimously modified on the law by vacating the sanction imposed and as modified the order is affirmed without costs.

Memorandum: We reject the contention of petitioner that Family Court erred in dismissing his petition seeking visitation with his two half siblings without conducting a hearing. Respondents Carol DeLaura and Edward R. DeLaura, the maternal grandparents of petitioner’s half siblings, established that there were two orders of protection prohibiting petitioner from having any contact with his half siblings, and thus there was no need for the court to conduct a hearing (see generally Matter of Bogdan v Bogdan, 291 AD2d 909 [2002]). We agree with petitioner, however, that the court abused its discretion in sua sponte sanctioning him based on its determination that the proceeding was frivolous. The court was required to afford petitioner a reasonable opportunity to be heard before imposing a sanction based on his alleged frivolous conduct (see 22 NYCRR 130-1.1 [a], [d]). Because that did not occur here, we modify the order by vacating the sanction imposed (see generally Matter of Schermerhorn v Quinette, 28 AD3d 822, 823 [2006]). We have considered petitioner’s remaining contentions and conclude that they are without merit. Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.