In re Adoption of a Child Whose First Name is Damien

Appellate Division of the Supreme Court of New York

In re Adoption of a Child Whose First Name is Damien

281 A.D.2d 896, 722 N.Y.S.2d 440, 2001 N.Y. App. Div. LEXIS 2834

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

DecidedMarch 21, 2001

StatusPublished

Cited by1 cases

This text of 281 A.D.2d 896 (In re Adoption of a Child Whose First Name is Damien) 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

In re Adoption of a Child Whose First Name is Damien, 281 A.D.2d 896, 722 N.Y.S.2d 440, 2001 N.Y. App. Div. LEXIS 2834 (N.Y. Ct. App. 2001).

Pincite

Opinion

—Order unanimously affirmed without costs. Memorandum: Surrogate’s Court properly granted petitioners’ motion for summary judgment dismissing the answer and dispensed with the consent of respondent to the adoption of his son pursuant to Domestic Relations Law § 111 (2) (a). We reject respondent’s contention that summary judgment is not available in this proceeding (see, SCPA 102; see also, Matter of Pascal, 309 NY 108, 113; Matter of Hollenbeck, 65 Misc 2d 796, 798, affd 37 AD2d 922; Matter of Fishkind, 272 App Div 827). The proof submitted by petitioners establishes as a matter of law that respondent evinced an intent to forego his parental rights and obligations by his failure for a period of six months to contact or communicate with the child, although able to do so (see, Domestic Relations Law § 111 [2] [a]), and respondent failed to raise a triable issue of fact. Respondent admitted that he failed to contact or communicate with the child for more than six months, and his incarceration does not excuse that failure (see, Matter of Clair, 231 AD2d 842, lv denied 89 NY2d 806). In addition, respondent failed to present proof to support his allegation that his efforts to contact or communicate with the child were thwarted or met with interference (see, Matter of Clair, supra). Rather, the proof establishes that respondent made no such efforts (see, Matter of Sergio LL., 269 AD2d 699, 700-701). Finally, while we agree with respondent that the court made improper comments regarding his motives for opposing the adoption, we conclude that those comments do not support the conclusion that the court was biased against respondent or that such bias affected the court’s determination herein (see, Matter of Katz v Denzer, 70 AD2d 548, 549; State Div. of Human Rights v [897]*897Merchants Mut. Ins. Co., 59 AD2d 1054, 1056). (Appeal from Order of Monroe County Surrogate’s Court, Ciaccio, S. — Adoption.) Present — Pigott, Jr., P. J., Green, Pine, Hurlbutt and Burns, JJ.

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—Order unanimously affirmed without costs. Memorandum: Surrogate’s Court properly granted petitioners’ motion for summary judgment dismissing the answer and dispensed with the consent of respondent to the adoption of his son pursuant to Domestic Relations Law § 111 (2) (a). We reject respondent’s contention that summary judgment is not available in this proceeding (see, SCPA 102; see also, Matter of Pascal, 309 NY 108, 113; Matter of Hollenbeck, 65 Misc 2d 796, 798, affd 37 AD2d 922; Matter of Fishkind, 272 App Div 827). The proof submitted by petitioners establishes as a matter of law that respondent evinced an intent to forego his parental rights and obligations by his failure for a period of six months to contact or communicate with the child, although able to do so (see, Domestic Relations Law § 111 [2] [a]), and respondent failed to raise a triable issue of fact. Respondent admitted that he failed to contact or communicate with the child for more than six months, and his incarceration does not excuse that failure (see, Matter of Clair, 231 AD2d 842, lv denied 89 NY2d 806). In addition, respondent failed to present proof to support his allegation that his efforts to contact or communicate with the child were thwarted or met with interference (see, Matter of Clair, supra). Rather, the proof establishes that respondent made no such efforts (see, Matter of Sergio LL., 269 AD2d 699, 700-701). Finally, while we agree with respondent that the court made improper comments regarding his motives for opposing the adoption, we conclude that those comments do not support the conclusion that the court was biased against respondent or that such bias affected the court’s determination herein (see, Matter of Katz v Denzer, 70 AD2d 548, 549; State Div. of Human Rights v [897]*897Merchants Mut. Ins. Co., 59 AD2d 1054, 1056). (Appeal from Order of Monroe County Surrogate’s Court, Ciaccio, S. — Adoption.) Present — Pigott, Jr., P. J., Green, Pine, Hurlbutt and Burns, JJ.

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281 A.D.2d 896, 722 N.Y.S.2d 440, 2001 N.Y. App. Div. LEXIS 2834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-a-child-whose-first-name-is-damien-nyappdiv-2001.

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