Dutchess County Department of Social Services v. Shirley U.

Appellate Division of the Supreme Court of New York

Dutchess County Department of Social Services v. Shirley U.

266 A.D.2d 459, 698 N.Y.S.2d 535, 1999 N.Y. App. Div. LEXIS 11997

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

DecidedNovember 22, 1999

StatusPublished

Cited by9 cases

This text of 266 A.D.2d 459 (Dutchess County Department of Social Services v. Shirley U.) 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

Dutchess County Department of Social Services v. Shirley U., 266 A.D.2d 459, 698 N.Y.S.2d 535, 1999 N.Y. App. Div. LEXIS 11997 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Dutchess County (Pagones, J.), entered April 29, 1998, as, upon the denial of its application to reopen the fact-finding hearing to present evidence that the subject child was under 18 years of age, dismissed the petition.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the petition is reinstated, the' petitioner’s application to reopen the hearing is granted, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith.

The Family Court improvidently exercised its discretion in [460]*460denying the petitioner’s application for permission to reopen its direct case. A trial court, in the exercise of its discretion and for sufficient reasons, may allow a party to reopen and supply defects in evidence which have inadvertently occurred (see, Benjamin v Desai, 228 AD2d 764, 766; see also, People v Olsen, 34 NY2d 349; People v Foy, 32 NY2d 473; People v Smith, 173 AD2d 416; Matter of Daniel A., 178 Misc 2d 90, 93-94; cf., Feldsberg v Nitschke, 49 NY2d 636, 643).

Here, the record indicates, inter alia, that the proof in question was omitted due to inadvertence (Benjamin v Desai, supra; Matter of Daniel A., supra), that the petitioner’s application was not aimed at gaining a tactical advantage or creating delays (Malhotra v Gupta, 226 AD2d 682), and that the respondent would suffer no prejudice if the application were to be granted (see, Harding v Noble Taxi Corp., 182 AD2d 365, 370; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 791). Ritter, J. P., Santucci, Thompson and Joy, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Dutchess County (Pagones, J.), entered April 29, 1998, as, upon the denial of its application to reopen the fact-finding hearing to present evidence that the subject child was under 18 years of age, dismissed the petition.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the petition is reinstated, the' petitioner’s application to reopen the hearing is granted, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith.

The Family Court improvidently exercised its discretion in [460]*460denying the petitioner’s application for permission to reopen its direct case. A trial court, in the exercise of its discretion and for sufficient reasons, may allow a party to reopen and supply defects in evidence which have inadvertently occurred (see, Benjamin v Desai, 228 AD2d 764, 766; see also, People v Olsen, 34 NY2d 349; People v Foy, 32 NY2d 473; People v Smith, 173 AD2d 416; Matter of Daniel A., 178 Misc 2d 90, 93-94; cf., Feldsberg v Nitschke, 49 NY2d 636, 643).

Here, the record indicates, inter alia, that the proof in question was omitted due to inadvertence (Benjamin v Desai, supra; Matter of Daniel A., supra), that the petitioner’s application was not aimed at gaining a tactical advantage or creating delays (Malhotra v Gupta, 226 AD2d 682), and that the respondent would suffer no prejudice if the application were to be granted (see, Harding v Noble Taxi Corp., 182 AD2d 365, 370; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 791). Ritter, J. P., Santucci, Thompson and Joy, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

266 A.D.2d 459, 698 N.Y.S.2d 535, 1999 N.Y. App. Div. LEXIS 11997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutchess-county-department-of-social-services-v-shirley-u-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack