Commissioner of Social Services of the County of Erie v. Crowden

166 A.D.2d 888, 560 N.Y.S.2d 548, 1990 N.Y. App. Div. LEXIS 12124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1990
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: This was the fourth proceeding commenced by petitioner against respondent for a declaration of paternity and ancillary relief. The first petition, filed in 1978, was dismissed following a pretrial conference, and an appeal from the Family Court order was dismissed for failure to prosecute. A second petition, commenced while the first proceeding was pending appeal, was summarily dismissed without prejudice. A third petition, filed subsequent to dismissal of the first appeal in 1979, also was dismissed without a hearing, and an appeal from an order in that proceeding was abandoned. Petitioner’s failure to perfect the prior appeals in a timely fashion bars relitigation of all issues that could have been decided on the prior appeals (see, Marcello v Marcello, 92 AD2d 687, lv dismissed 59 NY2d 761; Pigott Constr. Intl. v Contractors Ornamental Steel Co., 75 AD2d 988; see also, Bray v Cox, 38 NY2d 350; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.11, at 50-110). Accordingly, Family Court did not err in summarily dismissing the subject petition. (Appeal from order