Cavalry v. Simpson

• Decision Date: 21 December 2016
• Citation: 2016 N.Y. Slip Op. 08516,145 A.D.3d 885,44 N.Y.S.3d 112
• Parties: In the Matter of Henry CAVALRY, Jr., appellant, v. Lerone SIMPSON, respondent-respondent, et al., respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 885
44 N.Y.S.3d 112
2016 N.Y. Slip Op. 08516

In the Matter of Henry CAVALRY, Jr., appellant,
v.
Lerone SIMPSON, respondent-respondent, et al., respondent.

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

Dec. 21, 2016.

44 N.Y.S.3d 113

Jennifer D. Hersh, Jamaica, NY, for appellant.

Lauri Gennusa, Jamaica, NY, for respondent-respondent.

Jennifer Reddin, Whitestone, NY, attorney for the children.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

145 A.D.3d 885

Appeal by the maternal grandfather from an order of the Family Court, Queens County (Jane A. McGrady, Ct.Atty.Ref.), dated December 15, 2015. The order, upon the granting of the motion of the father and the attorney for the children, made at the close of the maternal grandfather's case at a fact-finding hearing, to dismiss the petition for grandparent visitation for failure to make out a prima facie case, dismissed the petition.

44 N.Y.S.3d 114

ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is denied, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for a continued fact-finding hearing and a new determination of the petition thereafter.

Following the death of the subject children's mother, the petitioner, the children's maternal grandfather, commenced this proceeding seeking visitation with the children, who live with their father. A fact-finding hearing was held, at which, since the petitioner had automatic standing to seek visitation (see Domestic Relations Law § 72 ; Matter of Eggleton v. Clark, 11 A.D.3d 459, 782 N.Y.S.2d 771 ), the only issue was whether visitation with the petitioner would be in the children's best interests. At the close of the petitioner's case, the Family Court granted the motion of the father and the attorney for the children pursuant to CPLR 4401 for judgment as a matter of law and...