Matter of Elikwu v. Bendter , 2023 NY Slip Op 01674 ( 2023 )

Matter of Elikwu v Bendter (2023 NY Slip Op 01674)

Matter of Elikwu v Bendter

2023 NY Slip Op 01674

Decided on March 29, 2023

Appellate Division, Second 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 March 29, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
BETSY BARROS
VALERIE BRATHWAITE NELSON
ROBERT J. MILLER, JJ.

2021-08425
(Docket No. V-903-19)

[*1]In the Matter of Ifechukwude Elikwu, appellant,

v

Urainia Bendter, respondent. Tammi D. Pere, Jamaica, NY, for appellant. Mark Diamond, Pound Ridge, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Janet Neustaetter of counsel), attorney for the child.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated November 9, 2021. The order, without a hearing, dismissed the father's petition for custody of the parties' child without prejudice.

ORDERED that the order is affirmed, without costs or disbursements.

In 2019, the father filed a petition for custody of the parties' child. During court conferences throughout 2021, the Supreme Court directed the father to obtain psychiatric counseling based upon the recommendations in a court-ordered mental health evaluation. The father failed to comply with the court's directives. The court dismissed the father's petition without prejudice "due to failure to cooperate with a court order." The father appeals.

The Supreme Court providently exercised its discretion in dismissing the father's petition without prejudice to him refiling a petition for custody when he was prepared to cooperate with the court's directives. Under the circumstances of this case, the father's noncompliance with court directives prevented the matter from proceeding to a best interest hearing (see Matter of Dysko v Dysko, ___ AD3d ___, 2023 NY Slip Op 00864 [2d Dept]).

The father's remaining contentions are without merit.

LASALLE, P.J., BARROS, BRATHWAITE NELSON and MILLER, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court