Bly v. Hoffman

• Decision Date: 14 February 2014
• Parties: In the Matter of Jody L. BLY, Petitioner–Appellant, v. John A. HOFFMAN, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1275

980 N.Y.S.2d 864

2014 N.Y. Slip Op. 01068

In the Matter of Jody L. BLY, Petitioner–Appellant,

v.John A. HOFFMAN, Respondent–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 14, 2014.

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered January 4, 2013 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Petitioner–Appellant.

Wendy G. Peterson, Attorney for the Children, Olean.

MEMORANDUM:

Petitioner mother appeals from an order dismissing her petition to modify an existing custody order without a hearing. We note at the outset that the appeal is moot with respect to the parties' older child because he reached the age of 18 years during the pendency of this appeal ( see Matter of Woodruff v. Adside, 26 A.D.3d 866, 866, 809 N.Y.S.2d 754). We agree with petitioner that she was denied the right to counsel when Family Court sua sponte dismissed her petition in the absence of her attorney. “The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position” (Matter of Williams v. Bentley, 26 A.D.3d 441, 442, 809 N.Y.S.2d 205;see Family Ct. Act § 262[a]; Matter of Dolson v. Mitts, 99 A.D.3d 1079, 1080, 951 N.Y.S.2d 920;Matter of Scala v. Tefft, 42 A.D.3d 689, 691–692, 840 N.Y.S.2d 193). We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition. In light of our determination, we need not address petitioner's remaining contention.

It is hereby ORDERED that said appeal insofar as it concerns the parties' older child is unanimously dismissed, the order is reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Cattaraugus County, for further proceedings.

SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ., concur.