In the Matter of Diego F. (anonymous).Magno v. (anonymous)

• Decision Date: 31 May 2011
• Citation: 924 N.Y.S.2d 278,2011 N.Y. Slip Op. 04674,84 A.D.3d 1373
• Parties: In the Matter of DIEGO F. (Anonymous).Magno V. (Anonymous), petitioner-respondent;Fanny Balseca, et al., respondents, Board of Education of the Hicksville Union Free School District, intervenor-appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1373

924 N.Y.S.2d 278

2011 N.Y. Slip Op. 04674

In the Matter of DIEGO F. (Anonymous).Magno

v. (Anonymous), petitioner-respondent;Fanny Balseca, et al., respondents, Board of Education of the Hicksville Union Free School District, intervenor-appellant.

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

May 31, 2011.

OPINION TEXT STARTS HEREGuercio & Guercio, LLP, Farmingdale, N.Y. (Christopher F. Mestecky of counsel), for intervenor-appellant.

In a guardianship proceeding pursuant to Family Court Act article 6, the Board of Education of the Hicksville Union Free School District appeals from an order of the Family Court, Nassau County (Stack, J.), dated October 14, 2010, which, upon a decision of the same court dated October 13, 2010, granted the petition of Magno V. for guardianship of the subject child. The notice of appeal from the decision is deemed a notice of appeal from the order ( see CPLR 5512[a] ).

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

The Family Court improvidently exercised its discretion in granting the petition for guardianship. The record fails to show that the subject child's best interest would be served by granting the guardianship ( compare Matter of Alamgir A., 81 A.D.3d 937, 938, 917 N.Y.S.2d 309; *279 Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 794, 901 N.Y.S.2d 296; cf. Matter of Proios, 111 Misc.2d 252, 443 N.Y.S.2d 828).