Opinion
2002-07413
Submitted March 17, 2003.
March 31, 2003.
In a habeas corpus proceeding pursuant to Domestic Relations Law § 70, the petitioner father appeals from a judgment of the Supreme Court, Suffolk County (Sgroi, J.), dated August 6, 2002, which, without a hearing, dismissed the proceeding.
Cartier, Hogan, Bernstein Auerbach, P.C., Patchogue, N.Y. (Kenneth A. Auerbach and Robert G. Steinberg of counsel), for appellant.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and a new determination.
The petitioner father brought this habeas corpus proceeding pursuant to Domestic Relations Law § 70 to obtain custody of his daughter from the respondent mother. The petition was not satisfied by the mere presence of the mother and daughter before the Supreme Court without consideration of the petitioner's request for a change of custody and visitation (see Domestic Relations Law § 70; see generally Matter of Mutterperl v. Reyes, 293 A.D.2d 542; People ex. rel. Cleopa v. Petras, 138 A.D.2d 548). Thus, the proceeding should not have been dismissed on that ground.
RITTER, J.P., SMITH, KRAUSMAN and RIVERA, JJ., concur.