Roberts v. LaCross

Appellate Division of the Supreme Court of New York

Roberts v. LaCross

99 A.D.3d 1065, 953 N.Y.2d 311

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

DecidedOctober 18, 2012

StatusPublished

This text of 99 A.D.3d 1065 (Roberts v. LaCross) 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.

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Roberts v. LaCross, 99 A.D.3d 1065, 953 N.Y.2d 311 (N.Y. Ct. App. 2012).

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Opinion

Malone Jr., J.

In March 2011, petitioner, the subject child’s paternal [1066]*1066grandmother, commenced this proceeding seeking visitation with the child (born in 2009) after a previous petition seeking the same relief was dismissed by Family Court for lack of standing in an order that was affirmed by this Court (Matter of Roberts v Roberts, 81 AD3d 1117 [2011]). The attorney for the child moved to dismiss the instant petition on the same basis, that petitioner lacked standing, which motion was joined by respondent Meghan LaCross, the child’s mother. Family Court granted the motion and dismissed the petition without a hearing, with prejudice, prompting this appeal.

Family Court did not abuse its discretion by granting the motion to dismiss the petition because petitioner again failed to establish that she has standing to seek visitation with the child. Although petitioner alleged that she sent the child birthday and holiday cards, and presented evidence that she maintains good relationships with other children in her family, this evidence tended to establish only her love and affection for the child, not that she had a “ ‘sufficient existing relationship’ ” with the child (Matter of Roberts v Roberts, 81 AD3d at 1118, quoting Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182 [1991]; see Domestic Relations Law § 72 [1]; Matter of Bassett v McGraw, 55 AD3d 980, 981 [2008]). Moreover, contrary to petitioner’s contentions, the record reveals that it was orders of protection in place against her as a result of her own conduct — and not the actions of the child’s mother — that thwarted her ability to form a relationship with the child (see Matter of Emanuel S. v Joseph E., 78 NY2d at 182-183; Matter of Roberts v Roberts, 81 AD3d at 1118). In light of the court’s familiarity with the parties and its apprehension of the relevant factual circumstances, we find no abuse of discretion in its determination that no triable issues of facts existed that warranted a hearing on the petition (see Matter of Roberts v Roberts, 81 AD3d at 1118; compare Matter of Newton v Simons, 52 AD3d 895, 896 [2008]).

Mercure, J.E, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.

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Malone Jr., J.

In March 2011, petitioner, the subject child’s paternal [1066]*1066grandmother, commenced this proceeding seeking visitation with the child (born in 2009) after a previous petition seeking the same relief was dismissed by Family Court for lack of standing in an order that was affirmed by this Court (Matter of Roberts v Roberts, 81 AD3d 1117 [2011]). The attorney for the child moved to dismiss the instant petition on the same basis, that petitioner lacked standing, which motion was joined by respondent Meghan LaCross, the child’s mother. Family Court granted the motion and dismissed the petition without a hearing, with prejudice, prompting this appeal.

Family Court did not abuse its discretion by granting the motion to dismiss the petition because petitioner again failed to establish that she has standing to seek visitation with the child. Although petitioner alleged that she sent the child birthday and holiday cards, and presented evidence that she maintains good relationships with other children in her family, this evidence tended to establish only her love and affection for the child, not that she had a “ ‘sufficient existing relationship’ ” with the child (Matter of Roberts v Roberts, 81 AD3d at 1118, quoting Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182 [1991]; see Domestic Relations Law § 72 [1]; Matter of Bassett v McGraw, 55 AD3d 980, 981 [2008]). Moreover, contrary to petitioner’s contentions, the record reveals that it was orders of protection in place against her as a result of her own conduct — and not the actions of the child’s mother — that thwarted her ability to form a relationship with the child (see Matter of Emanuel S. v Joseph E., 78 NY2d at 182-183; Matter of Roberts v Roberts, 81 AD3d at 1118). In light of the court’s familiarity with the parties and its apprehension of the relevant factual circumstances, we find no abuse of discretion in its determination that no triable issues of facts existed that warranted a hearing on the petition (see Matter of Roberts v Roberts, 81 AD3d at 1118; compare Matter of Newton v Simons, 52 AD3d 895, 896 [2008]).

Mercure, J.E, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.

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99 A.D.3d 1065, 953 N.Y.2d 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-lacross-nyappdiv-2012.

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