In re James L.
| Decision Date | 11 June 2010 |
| Citation | 74 A.D.3d 1775,902 N.Y.S.2d 487 |
| Parties | In the Matter of JAMES L., Jr., Respondent-Appellant. Livingston County Attorney, Petitioner-Respondent. (Appeal No. 2.) |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Family Court, Livingston County (Robert B. Wiggins, J.), entered August 18, 2009 in a proceeding pursuant to Family Court Act article 7. The order adjudicated respondent a person in need of supervision and placed respondent on probation for a period of 12 months.
Charles Plovanich, Attorney for the Child, Rochester, for respondent-appellant.
In Appeal No. 1, respondent appeals from an order denying his motion to dismiss the petition alleging that he is a person in need of supervision. We dismiss that appeal because no appeal lies as of right from such a nondispositional order ( see Family Ct Act § 1112[a]; see also Matter of Anthony SS., 197 A.D.2d 767, 604 N.Y.S.2d 826). In Appeal No. 2, however, respondent appeals from a subsequent order adjudicating him a person in need of supervision and placing him on probation for one year, and that appeal brings up for review the prior order ( see Matter of Dora P., 68 A.D.2d 719, 728, 418 N.Y.S.2d 597; CPLR 5501[a][1] ).
We agree with respondent in Appeal No. 2 that Family Court erred in denying his motion to dismiss the petition. The petition failed to specify what diversion services were offered pursuant toFamily Court Act § 735 prior to the filing of the petition. The petition also failed to demonstrate that petitioner had "exert[ed] what the statute refers to as 'documented diligent attempts' to avoid the necessity of filing a petition" ( Matter of James S. v. Jessica B., 9 Misc.3d 229, 232, 800 N.Y.S.2d 892; see § 735[d] ). "[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect" requiring dismissal of the petition ( Matter of Leslie H. v. Carol M.D., 47 A.D.3d 716, 717, 849 N.Y.S.2d 612; see Matter of Rajan M., 35 A.D.3d 863, 865, 826 N.Y.S.2d 720).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.
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