Matter of Brown-Winfield v. Bailey

143 A.D.3d 708, 38 N.Y.S.3d 441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2016
• Docket: 2014-11157ON MOTION
• Status: Published

Opinion

Appeal by the petitioner from an order of the Family Court, Queens County (Jane A. McGrady, Ct. Atty. Ref.), dated November 19, 2014. The order, without a hearing, dismissed the petitioner’s petition seeking modification of a custody order of the Family Court, Kings County, on the ground that the Family Court, Queens County, was not the proper forum to seek review of that order. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for the appellant on the appeal from the order.

Ordered that the motion of Kenneth M. Tuccillo for leave to withdraw as counsel for the appellant on the appeal from the order dated November 19, 2014, is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

Ordered that Mark Diamond, Esq., Box 287356, Yorkville Station, New York, NY, 10128, is assigned as counsel to prosecute that appeal; and it is further,

Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order, and the respondent shall serve and file his brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated February 9, 2015, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

On November 19, 2014, in the Family Court, Queens County, the petitioner filed a petition to modify an existing custody order and appeared before a Court Attorney Referee. At the appearance, the Court Attorney Referee stated that the Family Court, Queens County, lacked the authority to modify an order from the Family Court, Kings County. The Court Attorney Referee issued an order dismissing the petition on the ground that the Family Court, Queens County, was not the proper forum. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), asking for leave to withdraw as counsel for the appellant.

Upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the Family Court erred in concluding that it lacked authority to consider the petition to modify a prior order of custody issued by the Family Court, Kings County (see Family Ct Act § 171), and whether the court was authorized to dismiss the petition rather than transfer it to a proper or more convenient forum (see Family Ct Act § 174; Matter of Cruz v Cruz, 48 AD3d 804, 805 [2008]; cf. Matter of Winter v Karins, 96 AD3d 865, 866 [2012]; Matter of Arcuri v Osuna, 41 AD3d 841 [2007]).

Dillon, J.P., Cohen, Miller and Brathwaite Nelson, JJ., concur.