Anthony J., Matter of

• Decision Date: 03 October 1988
• Citation: 143 A.D.2d 668,532 N.Y.S.2d 924
• Parties: In the Matter of ANTHONY J. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 924

532 N.Y.S.2d 924

143 A.D.2d 668

In the Matter of ANTHONY J. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 3, 1988.

John F. Middlemiss, Jr., Hauppauge (Pauline Marie Salmon, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Michael J. Miller, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Suffolk County (Berler, J.), entered April 21, 1987, which, upon a fact-finding order of the same court, dated December 15, 1986, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of sodomy in the first degree, adjudged him a designated felon and placed him on probation for two years. The appeal brings up for review the fact-finding order dated December 15, 1986.

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

We find no merit to the appellant's claim that the Family Court lacked subject matter jurisdiction of the proceeding because the People failed to offer testimony or documentation establishing that the appellant was less than 16 years of age when he committed the purported act of sodomy (see, Family Ct. Act § 301.2[1], [8][ii] ).

Generally, subject matter jurisdiction is the court's "power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question" (Hunt v. Hunt, 72 N.Y. 217, 229). A court's subject matter jurisdiction is conferred by the constitution or statute, and if the court lacks subject matter jurisdiction, the defect is not curable by waiver, consent, estoppel or laches (see, Nuernberger v. State of New York, 41 N.Y.2d 111, 390 N.Y.S.2d 904, 359 N.E.2d 412). Indeed, an "objection to the jurisdiction in such case may be taken at any stage of the action, and the court may, ex mero motu [of its own motion], at any time, when its attention is called to the facts, refuse to proceed further, and dismiss the action" (Robinson v. Oceanic S.N. Co., 112 N.Y. 315, 324, 19 N.E. 625; see, Marine Midland Bank v. Bowker, 89 A.D.2d 194, 195-196, 456 N.Y.S.2d 453, affd. 59 N.Y.2d 739, 463 N.Y.S.2d 441, 450 N.E.2d 247). "However, there is a well-settled exception or proviso that this does not apply when the court had jurisdiction of the general subject matter but a contention is made after judgment that the court did not have power to act in the particular case or as to a particular question in the case" (Matter of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 217 N.E.2d 639, cert. denied 385 U.S. 899, 87 S.Ct. 204, 17 L.Ed.2d 131).

We find that, despite the Family Court's limited jurisdiction (see, Pearson v. Pearson, 118 Misc.2d 850, 461 N.Y.S.2d 722, affd. 108 A.D.2d 402, 489 N.Y.S.2d 332, affd. 69 N.Y.2d 919, 516 N.Y.S.2d 629, 509 N.E.2d 324), the petition, which set forth the appellant's age, was sufficient to confer upon the court jurisdiction over the proceeding. At no time has the appellant alleged that he was actually outside the court's jurisdictional age limitation (see, Matter of Donald F., 97 A.D.2d 980, 468 N.Y.S.2d 784; Matter of Anne-Marie P., 131 Misc.2d 959, 502 N.Y.S.2d 586; see, also, Besharov, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Part I, Family Court Act § 302.1...