Smith v. Maclin

Appellate Division of the Supreme Court of New York

Smith v. Maclin

294 A.D.2d 950, 741 N.Y.S.2d 784, 2002 N.Y. App. Div. LEXIS 4553

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

DecidedMay 3, 2002

StatusPublished

Cited by2 cases

This text of 294 A.D.2d 950 (Smith v. Maclin) 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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Smith v. Maclin, 294 A.D.2d 950, 741 N.Y.S.2d 784, 2002 N.Y. App. Div. LEXIS 4553 (N.Y. Ct. App. 2002).

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—Appeal from an order of [951]*951Family Court, Erie County (Mix, J.), entered April 26, 2000, which dismissed the petition seeking custody.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In April 2000 petitioner commenced this proceeding pursuant to Family Ct Act § 651 seeking custody of her children. Contrary to petitioner’s contention, Family Court properly dismissed the petition without conducting an evidentiary hearing. By an order entered in September 1999, the children were found to be neglected and were released to the custody of their father subject to the supervision of the Erie County Department of Social Services. Petitioner therefore should have filed a petition pursuant to Family Ct Act § 1061 seeking modification of the September 1999 order (see Matter of Davies v Davies, 223 AD2d 884, 886), and her “procedural error in seeking relief under Family Court Act article 6 provides a proper basis for dismissal” (Matter of Matthew W. v Sandra W., 291 AD2d 693, 694). Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.

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—Appeal from an order of [951]*951Family Court, Erie County (Mix, J.), entered April 26, 2000, which dismissed the petition seeking custody.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In April 2000 petitioner commenced this proceeding pursuant to Family Ct Act § 651 seeking custody of her children. Contrary to petitioner’s contention, Family Court properly dismissed the petition without conducting an evidentiary hearing. By an order entered in September 1999, the children were found to be neglected and were released to the custody of their father subject to the supervision of the Erie County Department of Social Services. Petitioner therefore should have filed a petition pursuant to Family Ct Act § 1061 seeking modification of the September 1999 order (see Matter of Davies v Davies, 223 AD2d 884, 886), and her “procedural error in seeking relief under Family Court Act article 6 provides a proper basis for dismissal” (Matter of Matthew W. v Sandra W., 291 AD2d 693, 694). Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.

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294 A.D.2d 950, 741 N.Y.S.2d 784, 2002 N.Y. App. Div. LEXIS 4553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-maclin-nyappdiv-2002.

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