Opinion
2021–01510 Docket No. V–8519–20
10-27-2021
In the Matter of Ingrid KELLY, appellant, v. Michael CAIRO, et al., respondents.
Stein & Stein, P.C., Smithtown, N.Y. (Peter C. Stein of counsel), for appellant. Mace H. Greenfield, Melville, NY, for respondents. Ronna L. DeLoe, Larchmont, NY, attorney for the child.
Stein & Stein, P.C., Smithtown, N.Y. (Peter C. Stein of counsel), for appellant.
Mace H. Greenfield, Melville, NY, for respondents.
Ronna L. DeLoe, Larchmont, NY, attorney for the child.
REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the paternal grandmother appeals from an order of the Family Court, Suffolk County (Heather P.S. James, Ct. Atty. Ref.), dated November 20, 2020. The order, without a hearing, granted the parents’ motion to dismiss the petition pursuant to Domestic Relations Law § 72(1) for grandparent visitation with the subject child, and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
" ‘Standing [based on equitable circumstances] should be conferred by the court, in its discretion, only after it has examined all the relevant facts’ " ( Matter of Noguera v. Busto, 189 A.D.3d 1050, 1051, 133 N.Y.S.3d 884, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). " ‘[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship’ " ( Matter of Noguera v. Busto, 189 A.D.3d at 1051, 133 N.Y.S.3d 884, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Gagliardi v. Ciccone, 188 A.D.3d 1203, 1204, 132 N.Y.S.3d 846 ; Matter of Marchant v. Marchant, 185 A.D.3d 1035, 1036, 128 N.Y.S.3d 656 ; Matter of Lipton v. Lipton, 98 A.D.3d 621, 621, 949 N.Y.S.2d 501 ). In cases where the relationship between the grandparent and grandchild has been frustrated by a parent, the grandparent must show, inter alia, that he or she "has made a ‘sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court's intervention’ " ( Matter of Rodriguez v. Concepcion, 188 A.D.3d 1217, 1218, 132 N.Y.S.3d 804, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Noguera v. Busto, 189 A.D.3d at 1051, 133 N.Y.S.3d 884 ). "[T]he sufficiency of the grandparent's efforts is measured against what they could have reasonably done under the circumstances" ( Matter of Gagliardi v. Ciccone, 188 A.D.3d at 1204, 132 N.Y.S.3d 846 ; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Sands v. Sands, 174 A.D.3d 628, 629, 101 N.Y.S.3d 877 ; Matter of Lipton v. Lipton, 98 A.D.3d at 621–622, 949 N.Y.S.2d 501 ). " ‘A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers’ " ( Matter of Sands v. Sands, 174 A.D.3d at 630, 101 N.Y.S.3d 877, quoting Matter of Broomfield v. Evans, 140 A.D.3d 748, 749, 30 N.Y.S.3d 915 ).
Here, equitable considerations do not warrant judicial intervention to confer standing upon the paternal grandmother. Although the petition alleged that the paternal grandmother developed a relationship with the subject child in her first few years of life before a dispute led the parents to cease contact with the paternal grandmother, it is undisputed that the paternal grandmother undertook no efforts to communicate with the child for approximately two years prior to commencing this proceeding (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Rodriguez v. ACS–Kings, 169 A.D.3d 693, 694, 91 N.Y.S.3d 706 ; cf. Matter of Vandenburg v. Vandenburg, 137 A.D.3d 1498, 28 N.Y.S.3d 736 ; Matter of Fitzpatrick v. Fitzpatrick, 137 A.D.3d 784, 784, 26 N.Y.S.3d 360 ). Accordingly, the Family Court properly granted, without a hearing, the parents’ motion to dismiss the petition, and dismissed the proceeding.
RIVERA, J.P., IANNACCI, FORD and DOWLING, JJ., concur.