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Barbosa v. Ventura

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


January 12, 2010

IN THE MATTER OF GENARO BARBOSA, APPELLANT,
v.
GLORIA VENTURA, RESPONDENT.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Krauss, J.), dated November 18, 2008, which, in effect, dismissed his objections to an order of the same court (Weir-Reeves, S.M.), dated September 11, 2008, which, after a hearing, dismissed, without prejudice, his petition for a downward modification of his child support obligations.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER & SHERI S. ROMAN, JJ.

(Docket No. F-37276-07)

DECISION & ORDER

ORDERED that the order is reversed, on the law, without costs or disbursements, the objections are reinstated, and the matter is remitted to the Family Court, Kings County, for consideration and determination of the objections on the merits.

The Family Court improperly, in effect, dismissed the father's objections to the order dismissing his petition on the ground that neither party appeared at the hearing before the Support Magistrate on September 11, 2008. The Family Court should have considered the father's objections on the merits, since the record evinces that both parties appeared before the Support Magistrate (Weir-Reeves, S.M.), on September 11, 2008, and that the Support Magistrate dismissed the father's petition on the merits. Accordingly, we reverse the order appealed from and remit the matter to the Family Court, Kings County, for consideration and determination of the father's objections on the merits (see Matter of Telfer v Telfer, 44 AD3d 780; Matter of Etuk v Etuk, 300 AD2d 483).

RIVERA, J.P., DILLON, MILLER and ROMAN, JJ., concur.

20100112

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