Matter of Carol H. v. Shewanna H.

Matter of Carol H. v Shewanna H. (2015 NY Slip Op 04202)

Matter of Carol H. v Shewanna H.

2015 NY Slip Op 04202

Decided on May 14, 2015

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 May 14, 2015
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.

15093

[*1] In re Carol H., Petitioner-Appellant,

v

Shewanna H., et al., Respondents-Respondents.

Geoffrey P. Berman, Larchmont, for appellant.

Kenneth M. Tuccillo, Hastings on Hudson, for Shewanna H., respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.

Order, Family Court, New York County (Susan M. Doherty, Referee), entered on or about May 27, 2014, which dismissed the petition by the subject children's maternal grandmother for custody of the children, and denied petitioner's motion for leave to amend the petition, unanimously affirmed, without costs.

Petitioner, who has no relationship with the children and has not seen them for more than four years, failed to meet her heavy burden of establishing "extraordinary circumstances" in support of her custody application (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Jumper v Hemphill, 75 AD3d 507 [2d Dept 2010], lv denied 15 NY3d 712 [2010]). The petition fails to allege facts sufficient to make out extraordinary circumstances; thus, Family Court was not required to hold a hearing on the issue (Matter of Stephon M. [William W.], 84 AD3d 497 [1st Dept 2011], lv denied 17 NY3d 707 [2011]).

The proposed amended petition does not cure the defects of the petition. Although it alleges that petitioner witnessed evidence of the unfitness of the children's mother "years ago," it does not allege that she took steps to gain custody at that time or even that she tried to see the children on a regular basis.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK