Teeter v. Reed

57 A.D.2d 735, 395 N.Y.S.2d 282, 1977 N.Y. App. Div. LEXIS 11801

Opinion

Order unanimously reversed, without costs, and motions denied. Memorandum: The County of Monroe appeals from an order granting petitioner’s motion and respondent Law Guardian’s cross motion to appeal and cross appeal as poor persons from a decision denying petitioner’s application for a writ of habeas corpus by which she sought custody of her minor child. CPLR 1101 (subd [a]) provides that upon an application for permission to appeal as a poor person, the "moving party shall file his affidavit setting forth * * * sufficient facts so that the merit of his contentions can be ascertained”. Here neither petitioner nor respondent included such facts in their respective affidavits. Although both did submit affidavits from their attorneys pursuant to CPLR 1101 (subd [b]) to the effect that their counsel believed there was merit to the appeal and cross appeal, this did not relieve them from the requirement of setting forth facts in their own affidavits showing merit (see Hauck v Roncone, 5 AD2d 804; Johnson v Rochester Sav. Bank, 256 App Div 1043; Weinstein v Frank, 56 App Div 275; 21 Carmody-Wait 2d, NY Prac, § 127:12). (Appeal from order of Monroe County Family Court—proceed as poor person.) Present—Marsh, P. J., Moule, Simons, Dillon and Witmer, JJ.