Opinion
March 21, 2001.
Appeal from Order of Monroe County Surrogate's Court, Ciaccio, S. — Adoption.
PRESENT: PIGOTT, JR., P. J., GREEN, PINE, HURLBUTT AND BURNS, JJ.
Order unanimously affirmed without costs.
Memorandum:
Surrogate's Court properly granted petitioners' motion for summary judgment dismissing the answer and dispensed with the consent of respondent to the adoption of his son pursuant to Domestic Relations Law § 111 (2) (a). We reject respondent's contention that summary judgment is not available in this proceeding ( see, SCPA 102; see also, Matter of Pascal, 309 N.Y. 108, 113; Matter of Hollenbeck, 65 Misc.2d 796, 798, affd 37 A.D.2d 922; Matter of Fishkind, 272 App. Div. 827). The proof submitted by petitioners establishes as a matter of law that respondent evinced an intent to forego his parental rights and obligations by his failure for a period of six months to contact or communicate with the child, although able to do so ( see, Domestic Relations Law § 111 [a]), and respondent failed to raise a triable issue of fact. Respondent admitted that he failed to contact or communicate with the child for more than six months, and his incarceration does not excuse that failure ( see, Matter of Clair, 231 A.D.2d 842, lv denied 89 N.Y.2d 806). In addition, respondent failed to present proof to support his allegation that his efforts to contact or communicate with the child were thwarted or met with interference ( see, Matter of Clair, supra). Rather, the proof establishes that respondent made no such efforts ( see, Matter of Sergio LL., 269 A.D.2d 699, 700-701). Finally, while we agree with respondent that the court made improper comments regarding his motives for opposing the adoption, we conclude that those comments do not support the conclusion that the court was biased against respondent or that such bias affected the court's determination herein ( see, Matter of Katz v. Denzer, 70 A.D.2d 548, 549; State Div. of Human Rights v. Merchants Mut. Ins. Co., 59 A.D.2d 1054, 1056).