Christine D. v. Timothy N.

Appellate Division of the Supreme Court of New York

Christine D. v. Timothy N.

17 A.D.3d 1037, 793 N.Y.S.2d 798, 2005 N.Y. App. Div. LEXIS 4513

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 2005

StatusPublished

This text of 17 A.D.3d 1037 (Christine D. v. Timothy N.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Christine D. v. Timothy N., 17 A.D.3d 1037, 793 N.Y.S.2d 798, 2005 N.Y. App. Div. LEXIS 4513 (N.Y. Ct. App. 2005).

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Opinion

[1038]*1038Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered February 4, 2004 in a proceeding pursuant to article 8 of the Family Court Act. The order granted respondent’s motion to dismiss the petition based on lack of jurisdiction.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings on the petition.

Memorandum: In this proceeding commenced pursuant to Family Court Act article 8, Family Court erred in granting respondent’s motion to dismiss the petition based on lack of jurisdiction. The court had jurisdiction over respondent based on the allegation in the petition that the parties had a child in common (see § 812 [1] [d]). The fact that petitioner had commenced a paternity proceeding that was pending at the time of this proceeding did not divest the court of jurisdiction (see Matter of Phillips v Laland, 4 AD3d 529 [2004], lv denied 3 NY3d 609 [2004]; Matter of Jerri D. v Jarrett H., 299 AD2d 863, 864 [2002]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.

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[1038]*1038Appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered February 4, 2004 in a proceeding pursuant to article 8 of the Family Court Act. The order granted respondent’s motion to dismiss the petition based on lack of jurisdiction.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings on the petition.

Memorandum: In this proceeding commenced pursuant to Family Court Act article 8, Family Court erred in granting respondent’s motion to dismiss the petition based on lack of jurisdiction. The court had jurisdiction over respondent based on the allegation in the petition that the parties had a child in common (see § 812 [1] [d]). The fact that petitioner had commenced a paternity proceeding that was pending at the time of this proceeding did not divest the court of jurisdiction (see Matter of Phillips v Laland, 4 AD3d 529 [2004], lv denied 3 NY3d 609 [2004]; Matter of Jerri D. v Jarrett H., 299 AD2d 863, 864 [2002]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.

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Bluebook (online)

17 A.D.3d 1037, 793 N.Y.S.2d 798, 2005 N.Y. App. Div. LEXIS 4513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christine-d-v-timothy-n-nyappdiv-2005.

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