Cindy L.S. v. v. David L.S.

• Decision Date: 17 February 1998
• Citation: Cindy L.S. v. v. David L.S., 669 N.Y.S.2d 306, 247 A.D.2d 543 (N.Y. App. Div. 1998)
• Parties: , 1998 N.Y. Slip Op. 1546 In the Matter of CINDY L.S. (Anonymous), Respondent, v. DAVID L.S. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 306

669 N.Y.S.2d 306

247 A.D.2d 543, 1998 N.Y. Slip Op. 1546

In the Matter of CINDY L.S. (Anonymous), Respondent, v. DAVID L.S. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 17, 1998.

Neal D. Futerfas, White Plains, for appellant.

Before MANGANO, P.J., and BRACKEN, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a family offense proceeding pursuant to Family Court Act article 8, the appeal is from an order of the Family Court, Dutchess County (Pagones, J.), dated July 3, 1996, which granted the petition for an order of protection.

ORDERED that the order is reversed, as a matter of discretion, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

Although the order of protection has expired, we have addressed the merits of the husband's appeal from that order, since enduring consequences may flow from an adjudication that he has committed a family offense (see, Matter of Bickwid v. Deutsch, 87 N.Y.2d 862, 638 N.Y.S.2d 932, 662 N.E.2d 250; Betz v. Betz, 241 A.D.2d 519, 661 N.Y.S.2d 534; Grossman v. Grossman, 238 A.D.2d 339, 656 N.Y.S.2d 935; Platsky v. Platsky, 237 A.D.2d 610, 655 N.Y.S.2d 650; Tibichrani v. Debs, 230 A.D.2d 746, 646 N.Y.S.2d 360; Matter of Cutrone v. Cutrone, 225 A.D.2d 767, 640 N.Y.S.2d 568). However, a remittal for a new hearing is not warranted in this case, since the expiration of the order of protection has rendered the wife's petition academic.

The Family Court improvidently exercised its discretion in denying the husband's request for a reasonable adjournment, thereby requiring him to appear pro se at the fact-finding and dispositional hearing. The husband informed the court that the attorney he believed he had retained had recently decided that he would not take the case, and requested that the court allow him time to secure representation. The court denied the husband's application, conducted a hearing, and ultimately granted the wife's petition for an order of protection.

Although the granting of an adjournment is a matter which rests within the sound discretion of the trial court (see, Jadar Development Corp., v. Greenspan, 230 A.D.2d 828, 646 N.Y.S.2d 828; Treppeda v. Treppeda, 212 A.D.2d 592, 622 N.Y.S.2d 749), under these circumstances the court improvidently denied the husband's single request for an adjournment to enable him to secure the counsel to which he was statutorily entitled (see, Family Ct. Act § 262[a][ii] ).

The...