Breaker v. ACS-Kings

• Decision Date: 03 June 2015
• Citation: 129 A.D.3d 715,8 N.Y.S.3d 918 (Mem),2015 N.Y. Slip Op. 04639
• Parties: In the Matter of Tracy BREAKER, appellant, v. ACS–KINGS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 715

8 N.Y.S.3d 918 (Mem)

2015 N.Y. Slip Op. 04639

In the Matter of Tracy BREAKER, appellant

v.ACS–KINGS, et al., respondents.

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

June 3, 2015.

David Zaslavsky, New York, N.Y., for appellant.

Warren & Warren, P.C., Brooklyn, N.Y. (Ira L. Eras of counsel), for respondent Mercyfirst.

Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.

Opinion

Appeal from an order of the Family Court, Kings County (Ann E. O'Shea, J.), dated February 11, 2014. The order dismissed a petition pursuant to Family Court Act article 6 for lack of personal jurisdiction.

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

The appellant is the maternal aunt of the subject child. She filed a petition pursuant to Family Court Act article 6, seeking custody of the child.

Contrary to the appellant's contention, the Family Court properly dismissed the petition on the ground that the appellant failed to serve a copy of the petition on the child's putative father, or present admissible evidence showing the efforts made to effect service on the putative father (see CPLR 308 [5] ; Corbo v. Stephens, 272 A.D.2d 502, 502, 709 N.Y.S.2d 99 ; Cooper–Fry v. Kolket, 245 A.D.2d 846, 847, 666 N.Y.S.2d 775 ).

Contrary to the appellant's further contention, the Family Court providently exercised its discretion in denying her request for an adjournment. “The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ ” (Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646, quoting Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; see Matter of Venditto v. Davis, 39 A.D.3d 555, 555, 831 N.Y.S.2d 725 ; Matter of Paulino v. Camacho, 36 A.D.3d 821, 822, 828 N.Y.S.2d 496 ). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75 ). Under the circumstances of this case, including the fact that the need for an adjournment resulted from a lack of due diligence on the appellant's part, the Family Court providently exercised its discretion in denying the appellant's request (see generally Matter of Ca'leb R.D. [Mary D.S.], 121 A.D.3d 890, 891, 994 N.Y.S.2d 395 ; Diamond v. Diamante, 57 A.D.3d 826, 827, 869 N.Y.S.2d 609 ; Matter of Venditto v. Davis, 39 A.D.3d at 555, 831 N.Y.S.2d...