Golden v. Golden

128 A.D.2d 672, 513 N.Y.S.2d 171, 1987 N.Y. App. Div. LEXIS 44364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1987
• Status: Published

Opinion

In a proceeding pursuant to Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction Act) to obtain custody of the parties’ infant daughter, the petitioner father appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated June 10, 1986, which granted the respondent mother’s motion to dismiss the petition for lack of jurisdiction.

Ordered that the order is reversed, on the law, without costs

or disbursements, and the motion is dismissed.

It is undisputed that the respondent failed to give the petitioner timely notice of the motion to dismiss (see, CPLR 2214 [b]). Hence, this error deprived the court of jurisdiction to entertain the motion and rendered the resulting order void (see, Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928; Morabito v Champion Swimming Pool Corp., 18 AD2d 706; Silverman v Silverman, 261 App Div 1106; Palmer v Rotary Realty Co., 233 App Div 764). However, the respondent is free, should she be so advised, to again seek dismissal of the petition upon proper notice (see, e.g., Hibbard v Shaad, 99 AD2d 670). Bracken, J. P., Weinstein, Spatt and Harwood, JJ., concur.