SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
May 5, 2009
IN THE MATTER OF KEVIN A. (ANONYMOUS), RESPONDENT
PRESENTMENT AGENCY, APPELLANT.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the Presentment Agency appeals from an order of the Family Court, Queens County (Bogacz, J.), dated September 15, 2008, which, after a hearing, granted that branch of the respondent's renewed motion which was to dismiss the petition for facial insufficiency, and dismissed the petition without prejudice.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL & L. PRISCILLA HALL, JJ.
(Docket No. D-17297-08)
DECISION & ORDER
ORDERED that the order is reversed, on the law and on the facts, without costs or disbursements, that branch of the respondent's renewed motion which was to dismiss the petition for facial insufficiency is denied, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.
Contrary to the determination of the Family Court, there is no basis to conclude, based upon facts adduced at the hearing held on September 11, 2008, in the companion case of Matter of Brian Z. (AD3d [Appellate Division Docket No. 2008-09505; decided herewith]), that the sworn statement contained in the petition describing the respondent's conduct would "suggest defiance of the accepted laws of physics, such that [the Family Court should have] dismissed that petition for facial insufficiency." Therefore, it was error for the court to have dismissed the petition in the instant proceeding on that basis.
The petitioner's remaining contentions are without merit.
SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.
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