Opinion
2014-07730 (Docket Nos. V-5828-08, V-582908)
07-29-2015
In the Matter of Wilbur James DAVIS, Jr., appellant, v. Carrie Ann KOCH, respondent.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. Arza Rayches Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for respondent. Nancy Tremarzo, Poughkeepsie, N.Y., attorney for the children.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.
Arza Rayches Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for respondent.
Nancy Tremarzo, Poughkeepsie, N.Y., attorney for the children.
Opinion
Appeal from an order of the Family Court, Dutchess County (Denise M. Watson, J.), entered June 16, 2014. The order dismissed, without prejudice, the father's petition seeking visitation with the subject children due to his failure to prosecute this matter.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to Family Court, Dutchess County, for further proceedings consistent herewith.
The father, an inmate at a correctional facility, correctly contends that the Family Court erred in dismissing his petition for failure to prosecute. Where, as here, the record indicates only that the correctional facility did not produce the father, and “the correctional facility [was] not responding,” there was no basis for dismissing the petition for neglect to prosecute (see Matter of Brudasca v. Cottone, 110 A.D.3d 1067, 974 N.Y.S.2d 500 ).
To the extent that the mother and the attorney for the children contend that this Court should affirm the order on the alternative ground that the Family Court had adequate relevant information to make an informed determination of the children's best interests (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; Matter of Myers v. Anderson, 100 A.D.3d 906, 954 N.Y.S.2d 204 ), that contention is without merit (see Matter of Crowell v. Livziey, 20 A.D.3d 923, 798 N.Y.S.2d 279 ).
Contrary to the father's contention, the order appealed from did not prohibit him from filing further petitions without leave of court. Accordingly, his arguments with respect to this contention are not properly before this Court (see generally CPLR 5511 ; Matter of Sarah A. [Daniel A.], 113 A.D.3d 845, 846, 978 N.Y.S.2d 909 ).
CHAMBERS, J.P., HALL, COHEN and MALTESE, JJ., concur.