Y., NICHOLAS R., MTR. OF

Appellate Division of the Supreme Court of New York

Y., NICHOLAS R., MTR. OF

91 A.D.3d 1321, 937 N.Y.2d 654

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

DecidedJanuary 31, 2012

DocketCAF 11-01019

StatusPublished

Cited by3 cases

This text of 91 A.D.3d 1321 (Y., NICHOLAS R., MTR. OF) 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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Y., NICHOLAS R., MTR. OF, 91 A.D.3d 1321, 937 N.Y.2d 654 (N.Y. Ct. App. 2012).

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*1322 Memorandum: Respondent appeals from an order adjudicating him a person in need of supervision and placing him on probation for one year. We agree with respondent that Family Court erred in denying his motion to dismiss the petition. In a report attached to the petition, representatives of the Livingston County Probation Department (LCPD), the lead agency pursuant to Family Court Act § 735 (a), merely stated in a conclusory fashion that the LCPD provided the requisite diversion services to respondent and his family prior to the filing of the petition. Thus, the petition failed to demonstrate that the LCPD had “exert[ed] what the statute refers to as documented diligent attempts to avoid the necessity of filing a petition” (Matter of James L. [appeal No. 2], 74 AD3d 1775, 1775 [2010] [internal quotation marks omitted]; see § 735 [b], [d]; Matter of Leslie H. v Carol M.D., 47 AD3d 716 [2008]). “ ‘[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect’ requiring dismissal of the petition” (Ja mes L., 74 AD3d at 1776). Present — Smith, J.P, Fahey, Garni, Sconiers and Gorski, JJ.

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*1322 Memorandum: Respondent appeals from an order adjudicating him a person in need of supervision and placing him on probation for one year. We agree with respondent that Family Court erred in denying his motion to dismiss the petition. In a report attached to the petition, representatives of the Livingston County Probation Department (LCPD), the lead agency pursuant to Family Court Act § 735 (a), merely stated in a conclusory fashion that the LCPD provided the requisite diversion services to respondent and his family prior to the filing of the petition. Thus, the petition failed to demonstrate that the LCPD had “exert[ed] what the statute refers to as documented diligent attempts to avoid the necessity of filing a petition” (Matter of James L. [appeal No. 2], 74 AD3d 1775, 1775 [2010] [internal quotation marks omitted]; see § 735 [b], [d]; Matter of Leslie H. v Carol M.D., 47 AD3d 716 [2008]). “ ‘[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect’ requiring dismissal of the petition” (Ja mes L., 74 AD3d at 1776). Present — Smith, J.P, Fahey, Garni, Sconiers and Gorski, JJ.

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91 A.D.3d 1321, 937 N.Y.2d 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/y-nicholas-r-mtr-of-nyappdiv-2012.

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