Matter of Gustavo D. v. Michael D.

Appellate Division of the Supreme Court of New York

Matter of Gustavo D. v. Michael D.

2017 NY Slip Op 246, 146 A.D.3d 530, 43 N.Y.S.3d 905

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

DecidedJanuary 12, 2017

Docket2733

StatusPublished

Cited by4 cases

This text of 2017 NY Slip Op 246 (Matter of Gustavo D. v. Michael D.) 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

Matter of Gustavo D. v. Michael D., 2017 NY Slip Op 246, 146 A.D.3d 530, 43 N.Y.S.3d 905 (N.Y. Ct. App. 2017).

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Opinion

Order, Family Court, New York County (Adetokunbo O. Fasanya, J.), entered on or about January 9, 2015, which dismissed, without prejudice, the petition for an order of protection against respondent for lack of jurisdiction, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for the court to advise petitioner of his right to counsel, and for a new hearing consistent with this decision.

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262 [a] [ii]; see Matter of Ford v Tindal, 24 AD3d 664, 665 [2d Dept 2005]; see also Matter of Mora v Alatriste, 99 AD3d 540, 541 [1st Dept 2012]). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812 (1) (e) (see Matter ofSeye v Lamar, 72 AD3d 975, 977 [2d Dept 2010]). Further evidence is needed regarding the frequency of petitioner and respondent’s interactions (Matter of Winston v Edwards-Clarke, 127 AD3d 771, 773 [2d Dept 2015]).

Concur — Sweeny, J.R, Renwick, Mazzarelli, Manzanet-Daniels and Feinman, JJ.

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Order, Family Court, New York County (Adetokunbo O. Fasanya, J.), entered on or about January 9, 2015, which dismissed, without prejudice, the petition for an order of protection against respondent for lack of jurisdiction, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for the court to advise petitioner of his right to counsel, and for a new hearing consistent with this decision.

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262 [a] [ii]; see Matter of Ford v Tindal, 24 AD3d 664, 665 [2d Dept 2005]; see also Matter of Mora v Alatriste, 99 AD3d 540, 541 [1st Dept 2012]). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812 (1) (e) (see Matter ofSeye v Lamar, 72 AD3d 975, 977 [2d Dept 2010]). Further evidence is needed regarding the frequency of petitioner and respondent’s interactions (Matter of Winston v Edwards-Clarke, 127 AD3d 771, 773 [2d Dept 2015]).

Concur — Sweeny, J.R, Renwick, Mazzarelli, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

2017 NY Slip Op 246, 146 A.D.3d 530, 43 N.Y.S.3d 905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-gustavo-d-v-michael-d-nyappdiv-2017.

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