IN RE: Barbara GRAY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Barbara GRAY, appellant, v. Suzanne VARONE, respondent. (Proceeding No. 1)

IN RE: Barbara Gray, appellant, v. Robert Varone, respondent. (Proceeding No. 2).

-- December 26, 2012

PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ. Barbara Gray, Lindenhurst, N.Y., appellant pro se. O'Brien & Manister, P.C., Hicksville, N.Y. (Todd J. Manister of counsel), for respondents. Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for the child.

In related proceedings pursuant to Family Court Act article 6 for grandparent visitation, the petitioner appeals from an order of the Family Court, Suffolk County (James, Ct.Atty.Ref.), dated December 8, 2011, which, upon granting the parents' motion pursuant to CPLR 4401, made at the close of her case, for judgment as a matter of law dismissing the petitions based upon her failure to establish a prima facie case as to standing, denied the petitions and dismissed the proceedings.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the matter is remitted to the Family Court, Suffolk County, for a continued hearing on the issue of standing, and, thereafter, if warranted, a hearing to determine whether visitation with the petitioner would be in the best interest of the subject child, and for a new determination of the petitions.

The petitioner, the maternal grandmother of the subject child, commenced these proceedings seeking visitation with the child pursuant to Domestic Relations Law § 72. The Family Court held a hearing on the issue of the petitioner's standing to seek visitation, but, at the close of the petitioner's case, granted the parents' motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the petitions based upon her failure to establish a prima facie case as to standing.

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry. First, it must find that the grandparent has standing, based on, inter alia, equitable considerations (see Matter of E.S. v. P.D., 8 NY3d 150, 157; Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181; Matter of Ann M.C. v. Orange County Dept. of Social Servs., 250 A.D.2d 190, 194). If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child (see Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Wilson v.. McGlinchey, 2 NY3d 375, 380; Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 181; Matter of Gort v. Kull, 96 AD3d 842, 843).

Here, contrary to the parents' contention, the petitioner established a prima facie case of standing to seek visitation with the subject child. Through her testimony, the petitioner established, prima facie, the existence of a sufficient relationship with the child to warrant the intervention of equity (see Matter of Gort v. Kull, 96 AD3d at 843; see generally Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182; Matter of Ann M.C. v. Orange County Dept. of Social Servs., 250 A.D.2d at 194). Further, the petitioner demonstrated, prima facie, that the parents' objection to contact between the child and the petitioner was based solely on animosity between the parties (see generally Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182; Matter of Waverly v. Gibson, 79 AD3d 897, 899; cf. Matter of Canales v. Aulet, 295 A.D.2d 507). Although “animosity coupled with family dysfunction may provide a basis for denying visitation rights,” the “existence of animosity between the parties alone” cannot provide such a basis (Matter of DiBeradino v. DiBeradino, 229 A.D.2d 539, 540; see Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Layton v. Foster, 95 A.D.2d 77, affd 61 N.Y.2d 747).

Accordingly, the Family Court erred in granting the motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the petitions at the close of the petitioner's case, and we remit the matter for a continued hearing on the issue of standing, and, thereafter, if warranted, a hearing to determine whether visitation with the petitioner would be in the best interest of the subject child, and for a new determination of the petitions.

In light of our determination, we need not reach the petitioner's remaining contentions.

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