Opinion
2013-03-6
In the Matter of CAMERON K. (Anonymous). Administration for Children's Services, petitioner-respondent; Samuel M. (Anonymous), appellant, et al., respondent.
DeGuerre Law Firm, P.C., Staten Island, N.Y. (Anthony DeGuerre of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel), for petitioner-respondent.
DeGuerre Law Firm, P.C., Staten Island, N.Y. (Anthony DeGuerre of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel), for petitioner-respondent.
Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), attorney for the child.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In a neglect proceeding pursuant to Family Court Act article 10, the father appeals (1) from an order of the Family Court, Richmond County (Wolff, J.), dated August 15, 2011, which denied his motion pursuant to CPLR 3211(a)(7) to dismiss the amended petition insofar as asserted against him for failure to state a cause of action or, in the alternative, pursuant to CPLR 3212 for summary judgment dismissing the amended petition insofar as asserted against him, and (2) as limited by his brief, from so much of an order of the same court, dated December 7, 2011, as granted, in part, the petitioner's motion for leave to amend the amended petition.
ORDERED that the order dated August 15, 2011, is affirmed, without costs or disbursements; and it is further,
ORDERED that the order dated December 7, 2011, is affirmed insofar as appealed from, without costs or disbursements.
“ ‘Only at the conclusion of a fact-finding hearing can the Family Court dismiss the petitions upon determining that its aid is not required on the record before it’ ” ( Matter of Chandler D., 16 A.D.3d 684, 685, 791 N.Y.S.2d 451, quoting Matter of Jonathan M., 306 A.D.2d 413, 414, 761 N.Y.S.2d 280;see Matter of Jayann B. [ David K. ], 85 A.D.3d 911, 912, 925 N.Y.S.2d 575;see also Matter of Dutchess County Dept. of Social Servs. v. Peter B., 224 A.D.2d 617, 617, 639 N.Y.S.2d 400;Commissioner of Social Servs., 186 A.D.2d 33, 34, 587 N.Y.S.2d 336;Matter of Rhonda T., 99 A.D.2d 758, 758–759, 471 N.Y.S.2d 676;cf. Matter of Sheena B. [ Rory F. ], 83 A.D.3d 1056, 1057, 922 N.Y.S.2d 176). In this case, the allegations in the amended petition were sufficient to require the Family Court to hold a fact-finding hearing ( see Matter of Jayann B. [ David K. ], 85 A.D.3d at 912, 925 N.Y.S.2d 575;Matter of Jonathan M., 306 A.D.2d at 414, 761 N.Y.S.2d 280;Matter of Dutchess County Dept. of Social Servs. v. Peter B., 224 A.D.2d at 617, 639 N.Y.S.2d 400;Matter of Rhonda T., 99 A.D.2d at 758–759, 471 N.Y.S.2d 676). Accordingly, in the order dated August 15, 2011, the Family Court properly denied that branch of the father's motion which was to dismiss the amended petition insofar as asserted against him pursuant to CPLR 3211(a)(7). Furthermore, the father failed to establish his prima facie entitlement to judgment as a matter of law, and, accordingly, the alternative branch of his motion, which was for summary judgment dismissing the amended petition insofar as asserted against him, was properly denied.
“ ‘Leave to amend a pleading should be freely given ( see CPLR 3025[b] ), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit’ ” ( Clark v. Clark, 93 A.D.3d 812, 816, 941 N.Y.S.2d 192, quoting Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 609, 769 N.Y.S.2d 279). “ ‘No evidentiary showing of merit is required under CPLR 3025(b)’ ” ( Clark v. Clark, 93 A.D.3d at 816, 941 N.Y.S.2d 192, quoting Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). Here, the Family Court providently exercised its discretion in granting, in part, the petitioner's motion for leave to amend the amended petition.