E., JOSEPH C., MTR. OF

Appellate Division of the Supreme Court of New York

E., JOSEPH C., MTR. OF

99 A.D.3d 1245, 951 N.Y.2d 450

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

DecidedOctober 5, 2012

DocketCAF 12-00431

StatusPublished

This text of 99 A.D.3d 1245 (E., JOSEPH C., MTR. OF) 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.

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E., JOSEPH C., MTR. OF, 99 A.D.3d 1245, 951 N.Y.2d 450 (N.Y. Ct. App. 2012).

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*1246 Memorandum: Respondent appeals from an order adjudicating him a person in need of supervision and placing him on probation for a period of one year. At the outset, we note that, “[although the dispositional portion of the . . . order . . . has expired by its own terms, a review of [respondent’s] adjudication as a person in need of supervision is not academic because of the possibility of collateral legal consequences resulting from the adjudication” (Matter of Leslie H. v Carol M.D., 47 AD3d 716, 717 [2008]; see Family Ct Act § 783).

Turning to the merits, we agree with respondent that Family Court erred in denying his motion to dismiss the petition. In a report attached to the petition, a representative of the Livingston County Probation Department (LCPD), the lead agency pursuant to Family Court Act § 735 (a), stated in a conclusory manner that diversion services for respondent and his family were provided prior to the filing of the petition. “Thus, the petition failed to demonstrate that the LCPD had exert[ed] what the statute refers to as documented diligent attempts to avoid the necessity of filing a petition’ ” (Matter of Nicholas R.Y. [Joanne Y.], 91 AD3d 1321, 1322 [2012]; see § 735 [b], [d]). "[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect requiring dismissal of the petition” (Nicholas R.Y., 91 AD3d at 1322 [internal quotation marks omitted]). Present — Fahey, J.E, Peradotto, Garni and Sconiers, JJ.

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*1246 Memorandum: Respondent appeals from an order adjudicating him a person in need of supervision and placing him on probation for a period of one year. At the outset, we note that, “[although the dispositional portion of the . . . order . . . has expired by its own terms, a review of [respondent’s] adjudication as a person in need of supervision is not academic because of the possibility of collateral legal consequences resulting from the adjudication” (Matter of Leslie H. v Carol M.D., 47 AD3d 716, 717 [2008]; see Family Ct Act § 783).

Turning to the merits, we agree with respondent that Family Court erred in denying his motion to dismiss the petition. In a report attached to the petition, a representative of the Livingston County Probation Department (LCPD), the lead agency pursuant to Family Court Act § 735 (a), stated in a conclusory manner that diversion services for respondent and his family were provided prior to the filing of the petition. “Thus, the petition failed to demonstrate that the LCPD had exert[ed] what the statute refers to as documented diligent attempts to avoid the necessity of filing a petition’ ” (Matter of Nicholas R.Y. [Joanne Y.], 91 AD3d 1321, 1322 [2012]; see § 735 [b], [d]). "[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect requiring dismissal of the petition” (Nicholas R.Y., 91 AD3d at 1322 [internal quotation marks omitted]). Present — Fahey, J.E, Peradotto, Garni and Sconiers, JJ.

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99 A.D.3d 1245, 951 N.Y.2d 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-joseph-c-mtr-of-nyappdiv-2012.

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