SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
May 5, 2009
IN THE MATTER OF BRIAN Z. (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 11, 2008, which, after a hearing, granted that branch of the respondent's 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 and L. PRISCILLA HALL, JJ.
(Docket No. D-17298-08)
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 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 that the "rock [allegedly thrown by the respondent] would have been violating the laws of physics to travel in the manner in which it's described in the supporting [sworn statement]" or that the "[sworn statement] does not speak of multiple rocks." Thus, the Family Court erred in dismissing the petition on the ground that it was facially insufficient, a conclusion supported only by the court's erroneous determination that the subject incident could not have occurred in the manner described in the sworn statement.
The petitioner's remaining contentions are without merit.
SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.
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