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In re Jerome W. (Anonymous)

Supreme Court of New York, Second Department

December 11, 2013

In the Matter of Jerome W. (Anonymous), appellant,
v.
Wendy F. (Anonymous), respondent. Docket No. P-2199-12

Helene Migdon Greenberg, Elmsford, N.Y., for appellant.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 5 to establish paternity, the petitioner appeals from an order of the Family Court, Westchester County (Bowman, J.), entered November 16, 2012, which dismissed the petition without prejudice.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for further proceedings on the petition.

The petitioner commenced this proceeding pursuant to Family Court Act article 5 to establish that he was the father of a child born in 2005 to the respondent mother. After the Family Court was informed that the mother could not appear at a hearing on the petition because she had been ordered by her doctor not to leave her bed at that point in her pregnancy, the court dismissed the petition "without prejudice." This was erroneous. Instead of dismissing the petition, the court should have either granted the parties' request to allow the mother to testify by telephone (see Family Ct Act § 531-a[a][iii]) or granted an adjournment of the hearing until the mother recovered (see Family Ct Act § 533). Accordingly, we reverse the order dismissing the petition, reinstate the petition, and remit the matter to the Family Court, Westchester County, for further proceedings on the petition.

MASTRO, J.P., LOTT, AUSTIN and ROMAN, JJ., concur.


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