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Acqumere James, An Infant Under the Age of Eighteen, By His v. Little Flower Children and Family Services

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


March 24, 2011

ACQUMERE JAMES, AN INFANT UNDER THE AGE OF EIGHTEEN, BY HIS
MOTHER AND NATURAL GUARDIAN, OCTAVIA JAMES,
PETITIONER-APPELLANT,
v.
LITTLE FLOWER CHILDREN AND FAMILY SERVICES, RESPONDENT-RESPONDENT.

Per curiam.

James v Little Flower Children & Family Servs.

Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2011

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ

Petitioner, as limited by his briefs, appeals from (1) that portion of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated May 11, 2010, which, upon granting respondent's motion to vacate an infant's compromise order, included references to "off-the-record" conversations with petitioner and his mother, and (2) an order (same Court and Judge), dated July 12, 2010, which denied petitioner's motion to vacate the prior May 11, 2010 order. Respondent, as limited by its brief, cross appeals from the May 11, 2010 order to the extent of seeking an order striking "references to any purported facts elicited by the motion court during the aforesaid conversations."

Order (Fernando Tapia, J.), dated May 11, 2010, affirmed, solely to the extent that it vacated the infant's compromise order; all references in the order to certain off-the-record ex-parte discussions with petitioner and his mother are stricken. Appeal from order (same court and Judge), dated July 12, 2010, dismissed as academic.

Civil Court properly vacated the infant's compromise order pursuant to CPLR 5015(a) and 2104 (see Bonnette v Long Is. Coll Hosp., 3 NY3d 281, 286 [2004]; Public Adj. Bur., Inc. v Greater NY Mut. Ins. Co., 57 AD3d 441 [2008]). However, Civil Court inappropriately engaged in off-the-record ex-parte discussions in chambers with the infant petitioner and his mother outside of the presence of counsel (see Matter of Toni G., 8 AD3d 379, 380 [2004]; Matter of Narsu v Polsinelli, 74 AD2d 952, 953 [1980]; see also People v Christie, 241 AD2d 699, 701 [1997]). In view of the pending litigation commenced by petitioner in Suffolk County, all references in the trial court's decision concerning those discussions are deemed stricken from the record, and shall have no precedential value whatsoever.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: March 24, 2011

20110324

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