Czaban v. Czaban

24 A.D.3d 547, 808 N.Y.S.2d 288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 2005
• Status: Published

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the mother appeals from an order of the Family Court, Nassau County (Lawrence, J.), dated February 20, 2004, which, upon the failure of her attorney to appear at a hearing and upon the denial of her request for an adjournment of the hearing, dismissed her petition with prejudice.

Ordered that the order is reversed, on the law and as a matter of discretion, the petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for a new hearing on the petition and a new determination thereafter, with costs to abide the event.

At the hearing held on the mother’s petition alleging a violation of an order of protection, the mother appeared but her attorney did not. The Family Court denied the mother’s application for an adjournment, then dismissed her petition with prejudice. However, the Family Court improvidently exercised its discretion in denying the mother’s application for an adjournment based upon the balancing of the relevant factors that attend such a determination (see Matter of Vidal v Mintzer, 309 AD2d 756 [2003]; Saborio v Saborio, 147 AD2d 468 [1989]; see also Wilson v Wilson, 97 AD2d 897 [1983]).

Accordingly, we remit the matter to the Family Court, Nassau County, for a new hearing on the petition and a new determination thereafter. Ritter, J.P., Rivera, Spolzino and Covello, JJ., concur.