Schiavone v. Schiavone

273 A.D.2d 394, 710 N.Y.S.2d 924, 2000 N.Y. App. Div. LEXIS 7078

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2000
• Status: Published

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the appeal is from an order of the Family Court, Westchester County (Edlitz, J.), dated June 22, 1999, which denied the appellant’s motion, inter alia, for a new hearing on the issues of whether the appellant ever threatened the respondent or his daughter with a gun, and whether the appellant should have his firearms license revoked.

Ordered that on the Court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

The power of a court to order a new fact-finding hearing is discretionary in nature (see, Micallef v Miehle Co., 39 NY2d 376, 381). Where, as here, the appellant offered no excuse for the nearly seven-month delay in moving, inter alia, for a new hearing, and the information proffered could have been presented at the fact-finding hearing, the Family Court providently exercised its discretion in denying the appellant’s motion. Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.