In re Brian Z.

Appellate Division of the Supreme Court of New York

In re Brian Z.

62 A.D.3d 718, 877 N.Y.S.2d 698

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

DecidedMay 5, 2009

StatusPublished

Cited by1 cases

This text of 62 A.D.3d 718 (In re Brian Z.) 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 Brian Z., 62 A.D.3d 718, 877 N.Y.S.2d 698 (N.Y. Ct. App. 2009).

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Opinion

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from an order of the Family Court, Queens County (Bogacz, J.), dated September 11, 2008, which, after a hearing, granted that branch of the respondent’s motion which was to dismiss the petition for facial insufficiency, and dismissed the petition without prejudice.

[719]*719Ordered that the order is reversed, on the law and on the facts, without costs or disbursements, that branch of the respondent’s motion which was to dismiss the petition for facial insufficiency is denied, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.

Contrary to the determination of the Family Court, there is no basis to conclude that the “rock [allegedly thrown by the respondent] would have been violating the laws of physics to travel in the manner in which it’s described in the supporting [sworn statement]” or that the “[sworn statement] does not speak of multiple rocks.” Thus, the Family Court erred in dismissing the petition on the ground that it was facially insufficient, a conclusion supported only by the court’s erroneous determination that the subject incident could not have occurred in the manner described in the sworn statement.

The petitioner’s remaining contentions are without merit. Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.

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In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from an order of the Family Court, Queens County (Bogacz, J.), dated September 11, 2008, which, after a hearing, granted that branch of the respondent’s motion which was to dismiss the petition for facial insufficiency, and dismissed the petition without prejudice.

[719]*719Ordered that the order is reversed, on the law and on the facts, without costs or disbursements, that branch of the respondent’s motion which was to dismiss the petition for facial insufficiency is denied, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.

Contrary to the determination of the Family Court, there is no basis to conclude that the “rock [allegedly thrown by the respondent] would have been violating the laws of physics to travel in the manner in which it’s described in the supporting [sworn statement]” or that the “[sworn statement] does not speak of multiple rocks.” Thus, the Family Court erred in dismissing the petition on the ground that it was facially insufficient, a conclusion supported only by the court’s erroneous determination that the subject incident could not have occurred in the manner described in the sworn statement.

The petitioner’s remaining contentions are without merit. Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.

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Bluebook (online)

62 A.D.3d 718, 877 N.Y.S.2d 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brian-z-nyappdiv-2009.

Opinion

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