Opinion
11-23-2016
In the Matter of Patti PUGZ, appellant, v. Kacey SMITH, et al., respondents.
Conti & Keegan, P.C., Staten Island, NY (Angela Conti of counsel), for appellant. Michele A. Sileo, Staten Island, NY, attorney for the child.
Conti & Keegan, P.C., Staten Island, NY (Angela Conti of counsel), for appellant.
Michele A. Sileo, Staten Island, NY, attorney for the child.
Appeal by the maternal grandmother from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated November 4, 2015. The order, in effect, without a hearing, granted the mother's motion to dismiss the maternal grandmother's petition for custody of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
“ ‘In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances' ” (Matter of Maddox v. Maddox, 141 A.D.3d 529, 529, 35 N.Y.S.3d 264, quoting Matter of Bailey v. Carr, 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; see Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546–548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Jamison v. Britton, 141 A.D.3d 522, 524, 35 N.Y.S.3d 256 ; Matter of Santiago v. Henderson, 122 A.D.3d 866, 996 N.Y.S.2d 686 ). The nonparent bears the burden of proving the existence of extraordinary circumstances in order to establish his or her standing to seek custody of the subject child against a parent (see Matter of Suarez v. Williams, 26 N.Y.3d at 448, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Maddox v. Maddox, 141 A.D.3d at 529, 35 N.Y.S.3d 264; Matter of Jamison v. Britton, 141 A.D.3d at 525, 35 N.Y.S.3d 256; Matter of Santiago v. Henderson, 122 A.D.3d at 867, 996 N.Y.S.2d 686 ; Matter of Tolbert v. Scott, 15 A.D.3d 493, 495, 790 N.Y.S.2d 495 ). A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the papers submitted (see Matter of Maddox v. Maddox, 141 A.D.3d at 529, 35 N.Y.S.3d 264).
Here, the maternal grandmother failed to sufficiently allege the existence of extraordinary circumstances. Accordingly, the Family Court properly, in effect, granted the mother's motion to dismiss the petition (see Matter of Maddox v. Maddox, 141 A.D.3d at 529, 35 N.Y.S.3d 264; Matter of Jamison v. Britton, 141 A.D.3d at 524, 35 N.Y.S.3d 256; Matter of Bailey v. Carr, 125 A.D.3d at 853, 4 N.Y.S.3d 121 ; Matter of Santiago v. Henderson, 122 A.D.3d at 867, 996 N.Y.S.2d 686 ; Matter of Aylward v. Bailey, 91 A.D.3d 1135, 1136–1137, 938 N.Y.S.2d 215 ). Since no triable issues of fact were raised in the maternal grandmother's submissions, a hearing to determine the issue of standing was not necessary (see Matter of Maddox v. Maddox, 141 A.D.3d at 529, 35 N.Y.S.3d 264; Matter of Santiago v. Henderson, 122 A.D.3d at 866–867, 996 N.Y.S.2d 686 ; cf. Matter of Tolbert v. Scott, 15 A.D.3d at 495, 790 N.Y.S.2d 495 ).
DILLON, J.P., DICKERSON, HINDS–RADIX and MALTESE, JJ., concur.