In re Maurice

Appellate Division of the Supreme Court of New York, Fourth DepartmentMar 14, 2008
49 A.D.3d 1248 (N.Y. App. Div. 2008)
49 A.D.3d 1248852 N.Y.S.2d 8812008 N.Y. Slip Op. 2334

No. CAF 06-03639.

March 14, 2008.

Appeal from an order of the Family Court, Oneida County (John E. Flemma, J.H.O.), entered May 23, 2006. The order dismissed with prejudice three violation petitions filed by petitioner.


Present: Smith, J.P., Centra, Fahey, Peradotto and Green, JJ.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner father appeals from an order dismissing his three petitions alleging that respondent mother violated the terms of a prior custody order. We affirm. Contrary to the father's contention, the Judicial Hearing Officer properly dismissed one of the three violation petitions because "the evidence does not establish that [the mother] willfully violated a clear mandate of [the custody] order" by failing to notify him of a medical emergency and by failing to identify the father as an emergency contact on a hospital form ( Matter of Lonniel L.G. v Tammy G.-G., 39 AD3d 1200, 1201; see generally Matter of Johnson v Ahem, 29 AD3d 1101). The mother brought the child to the hospital seeking treatment for an eye injury, whereupon she completed the hospital form, and the record establishes that the child's eye injury did not constitute a medical emergency ( see Matter of Brennan v Anesi, 283 AD2d 693, 694). We have examined the father's remaining contentions with respect to the dismissal of the three violation petitions and conclude that they are lacking in merit. Finally, the father's request that this Court reverse the order and remit the matter to Family Court to dispose of the remaining petitions is not properly before us ( see CPLR 5512 [a]; Eaton v Eaton, 46 AD3d 1432; Kantrowitz v LaRoche, 5 AD3d 101; see also Angelucci v Sands, 297 AD2d 764).