David S.S. v. Mia B.M.

48 A.D.3d 1246, 852 N.Y.S.2d 544

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Erie County (Marjorie C. Mix, J.H.O.), entered August 25, 2006 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

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

Memorandum: Petitioner father appeals from an order of a Judicial Hearing Officer (JHO) dismissing his petition alleging that respondent mother violated the terms of an order of visitation. We agree with the father that, because he refused to consent to the authority of the JHO to hear and determine the matter, the JHO lacked jurisdiction to dismiss the petition (see CPLR 4317 [a]; Batista v Delbaum, Inc., 234 AD2d 45, 46 [1996]; see also Litman, Asche, Lupkin & Gioiella v Arashi, 192 AD2d 403 [1993]; cf. Chalu v Tov-Le Realty Corp., 220 AD2d 552, 553 [1995] , lv dismissed in part and denied in part 88 NY2d 959 [1996] , rearg denied 88 NY2d 1040 [1996], lv denied 91 NY2d 952 [1998]). We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition. Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.