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In re Schultz

Supreme Court of New York, Fourth Department

June 14, 2013

IN THE MATTER OF LAURA M. SCHULTZ, PETITIONER-APPELLANT,
v.
KARL F. SCHULTZ, RESPONDENT-RESPONDENT. (APPEAL NO. 2.)

Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), entered January 19, 2012. The order granted the motion of respondent to dismiss the amended petition.

PETER P. VASILION, WILLIAMSVILLE, FOR PETITIONER-APPELLANT.

THOMAS A. DEUSCHLE, ATTORNEY FOR THE CHILD, WEST SENECA.

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion to dismiss the amended petition is denied, the amended petition is reinstated and the matter is remitted to Family Court, Erie County, for a hearing on the amended petition.

Memorandum:Petitioner mother appeals from orders dismissing her violation petition (appeal No. 1), granting the motion of respondent father to dismiss the amended violation petition (appeal No. 2), and dismissing the amended violation petition (appeal No. 3). We dismiss the appeal from the order in appeal No. 1 because the amended petition superseded the original petition (see Matter of Stewart v Zigmant [appeal No. 1], 198 A.D.2d 883, 883; see also Preston v APCH, Inc., 89 A.D.3d 65, 69). With respect to appeals No. 2 and 3, we agree with the mother that Family Court erred in dismissing her amended petition without a hearing "inasmuch as the [amended] petition alleges sufficient factual and legal grounds to establish a violation of [a] prior order" (Matter of Warrior v Beatman, 79 A.D.3d 1770, 1770-1771, lv denied 16 N.Y.3d 819; see Matter of Lisa B.I. v Carl D.I., 46 A.D.3d 1451, 1451; Matter of Zelodius C. v Danny L., 39 A.D.3d 320, 320). Moreover, we note that the father's submissions in support of his motion to dismiss do not address all of the allegations in the mother's amended petition. In light of our determination, we do not consider the mother's remaining contention.


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