Margensey v. Manitta , 549 N.Y.S.2d 306 ( 1989 )

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Cayuga County Surrogate’s Court for further proceedings, in accordance with the following memorandum: Petitioner contends that the Surrogate erred in denying her petition to revoke her adoption consent because it was the product of fraud, duress and coercion (see, Domestic Relations Law § 115-b [7]). She asserts that respondents and their attorney incorrectly advised her at their initial meetings that she would have six months to revoke her consent. The record shows that before petitioner gave her consent, both the Surrogate and petitioner’s Law Guardian fully explained to her that the consent was irrevocable and she would have nothing further to say about the child. Further, petitioner stated to the Surrogate that her consent had not been coerced and was the product of her own free will. Given these circumstances, we find no basis to disturb the Surrogate’s determination that petitioner’s consent was voluntary (see, Matter of T W. C., 38 NY2d 128, 129-130; Matter of Podmore v Our Lady of Victory Infant Home, 82 AD2d 48; Matter of Jason ZZ., 79 AD2d 737, 738, Iv denied 53 NY2d 601). We further agree with the Surrogate that respondents acted improperly in misrepresenting and failing to disclose material facts in their adoption petition (see, Matter of Lord, 28 AD2d 1203). We, however, cannot agree with the Surrogate’s summary denial of the petition. The question before the Surrogate was whether the adoption was in the best interests of the child (Domestic Relations Law § 114). In denying the petition, the Surrogate did not reach this issue. We therefore modify the Surrogate’s order by reinstating the adoption petition and remitting the petition for a hearing before a different Judge to determine whether the adoption is in the best interests of the child. (Appeal from order of Cayuga County Surrogate’s Court, Contiguglia, S. — adoption.) Present — Boomer, J. P., Green, Pine, Lawton and Davis, JJ.