Matter of Jose C. v. Johnny C. , 156 A.D.3d 430 ( 2017 )

Matter of Jose C. v Johnny C. (2017 NY Slip Op 08490)

Matter of Jose C. v Johnny C.

2017 NY Slip Op 08490

Decided on December 5, 2017

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 December 5, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kern, Singh, JJ.

5142

[*1]In re Jose C., et al., Petitioners-Appellants,

v

Johnny C. (Deceased Father), Respondent, Beatriz A. H., Respondent-Respondent.

Anne Reiniger, New York, for appellants.

Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent.

Andrew J. Baer, New York, attorney for the child.

Order, Family Court, New York County (J. Machelle Sweeting, J.), entered on or about November 21, 2016, which, to the extent appealed from as limited by the briefs, dismissed petitioner grandparents' petition for custody of the subject child, unanimously affirmed, without costs.

Family Court properly dismissed summarily the paternal grandparents' petition for custody of the subject child, since the petition contained only conclusory statements that failed to allege extraordinary circumstances warranting a hearing (see Matter of Maddox v Maddox, 141 AD3d 529 [2d Dept 2016], lv denied 28 NY3d 905 [2016]). There was no basis for the child to be placed in the custody of the grandparents without a showing of extraordinary circumstances, where the child was in the custody of an otherwise fit parent (see id.).

Although the grandparents asserted that they cared for the child for seven years after his birth, there was no proof of a prolonged separation between the mother and child or intent by the mother to relinquish her parental duties and care of the child to the grandparents (compare Matter of Suarez v Williams, 26 NY3d 440 [2015] [grandparents may demonstrate standing where the child has lived with the grandparents for a prolonged period of time]). Nor was there an allegation that rose to the level of surrender, abandonment, unfitness, or persistent neglect sufficient to warrant a hearing (see id. at 446; see also Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2017

CLERK