Matter of Nwakibi F. v. Sanora W. , 26 N.Y.S.3d 266 ( 2016 )

Matter of Nwakibi F. v Sanora W. (2016 NY Slip Op 01266)

Matter of Nwakibi F. v Sanora W.

2016 NY Slip Op 01266

Decided on February 23, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2016
Tom, J.P., Andrias, Moskowitz, Richter, JJ.

293

[*1]In re Nwakibi F., Petitioner-Appellant,

v

Sanora W., Respondent-Respondent.

Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.

Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of counsel), attorney for the child.

Order, Family Court, Bronx County (Lauren Norton Lerner, Referee), entered on or about November 6, 2014, which, after examination and inquiry, granted respondent mother's motion to dismiss petitioner father's petition to hold respondent in contempt, unanimously affirmed, without costs.

The Referee properly dismissed the petition, without holding a full evidentiary hearing, because petitioner failed to state a claim that respondent had violated a 2008 visitation order (see Matter of Jean v Washington, 71 AD3d 1145, 1146 [2d Dept 2010]). Petitioner alleged that respondent had violated the terms of the visitation order by moving to Yonkers without letting him know the subject child's new address. However, nothing in the visitation order prohibited respondent from moving with the child or required her to notify petitioner of their address, and he did not allege how the move impeded his ability to visit the child (see Matter of Miller v Miller, 77 AD3d 1064, 1065-1066 [3d Dept 2010], lv dismissed in part and denied in part 16 NY3d 737 [2011]). Moreover, petitioner did not allege that he had complied with his own obligations under the visitation order — namely, to contact respondent at the beginning of the month to arrange visits. Further, he acknowledged that he knew where the child was living by 2011, three years before filing the contempt petition. He also acknowledged that an order of protection against him precluded his contact with respondent and the child for a two-year period beginning in 2011.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2016

CLERK