Pellicciotti v. Pellicciotti

206 A.D.2d 616, 614 N.Y.S.2d 588, 1994 N.Y. App. Div. LEXIS 7347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 1994
• Status: Published

Opinion

Crew III, J.

Appeal from an order of the Family Court of Broome County (Hester, Jr., J.), entered May 5, 1993, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ minor child.

Petitioner’s allegation that respondent was negligent in her care of the parties’ then nine-year-old daughter and his blanket assertion that he could provide the child with better care and attention were conclusory in nature and, standing alone, were not sufficient to warrant a hearing on petitioner’s application for a change in custody (see, David W. v Julia W., 158 AD2d 1, 6-7). Petitioner further alleged, however, that respondent left the child home alone for SVi days while the child was sick with a fever. In our view, this allegation does "set forth sufficient facts which, if established at an evidentiary hearing, could afford a basis for granting the relief sought” (Matter of Greenblatt v Van Deusen, 87 AD2d 713, 714) and, as such, Family Court erred in precipitously dismissing the petition. The court had a number of options in lieu of dismissal at this stage of the proceeding which included, inter alia, the appointment of a Law Guardian, the ordering of an investigation pursuant to Family Court Act § 1034 and the direction for the completion of pretrial discovery so as to further reveal the merits of the underlying petition.

Mikoll, J. P., Mercure, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Broome County for further proceedings not inconsistent with this Court’s decision.