Brudasca v. Cottone

110 A.D.3d 1067, 974 N.Y.S.2d 500

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2013
• Status: Published

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of disposition of the Family Court, Queens County (Jolly, J.), dated September 28, 2012, which dismissed her petition on the ground of failure to prosecute.

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 a hearing and a new determination of the petition thereafter.

The appellant alleged in her petition that the respondent violated a temporary order of protection dated April 10, 2012. The Family Court denied the appellant’s application for an adjournment and, upon concluding that the appellant failed to prosecute this proceeding, dismissed the petition. This was error (see Matter of Jasmine S., 1 AD3d 257, 259 [2003]). Under the circumstances of this case, where the adjournment requested was reasonable, the court should have afforded the appellant the opportunity to be heard with respect to her allegations (see Matter of Ramos v Caceres, 104 AD3d 775, 775 [2013]). Accordingly, the matter must be remitted to the Family Court, Queens County, for a hearing and a new determination thereafter of the petition. Eng. P.J., Balkin, Lott and Roman, JJ., concur.