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Singer v. Levitt

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


August 18, 2009

IN THE MATTER OF MITCHELL SINGER, APPELLANT,
v.
ALAN LEVITT, RESPONDENT.

In a consolidated habeas corpus proceeding and a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated October 10, 2008, as denied that branch of his motion which was for summary judgment awarding him custody of the subject child.

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., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and ARIEL E. BELEN, JJ.

(Index No. 202006/08)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondent and the attorney for the child.

Contrary to the father's contention, he was not entitled to summary determination as to custody. Although as between a parent and a non-parent, a parent has a superior right to custody, such right may be lost when certain extraordinary circumstances exist (see Matter of Wilson v Smith, 24 AD3d 562; see also Matter of Bennett v Jeffreys, 40 NY2d 543, 548). Here, in opposition to the father's motion for summary judgment, the maternal uncle raised triable issues of fact as to whether those extraordinary circumstances existed (see Matter of Danzy v Jones-Moore, 54 AD3d 858). Accordingly, the Supreme Court properly denied the father's motion for summary judgment.

The father's remaining contentions are without merit.

SKELOS, J.P., ANGIOLILLO, BALKIN and BELEN, JJ., concur.

20090818

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