DANIAL v. LEDYARD (2006)

Petitioner contends that Family Court erred in denying that part of his petition seeking to terminate visitation between his son and Ledyard M. and Kathleen M. (respondents), his son's maternal grandparents.   We reject that contention.   We note at the outset that, although petitioner's notice of appeal is premature because it was filed before the entry of the order from which the appeal is taken (see Matter of Erie County Dept. of Social Servs. v. Theodore D., 217 A.D.2d 997, 630 N.Y.S.2d 822;  Spano v. County of Onondaga, 170 A.D.2d 974, 565 N.Y.S.2d 665, lv. denied 77 N.Y.2d 809, 571 N.Y.S.2d 912, 575 N.E.2d 398, lv. dismissed 77 N.Y.2d 989, 571 N.Y.S.2d 915, 575 N.E.2d 401), we nevertheless address the merits of the appeal in the exercise of our discretion and in the interest of judicial economy (see CPLR 5520[c];  Matter of James J., 207 A.D.2d 960, 616 N.Y.S.2d 827).

Contrary to the contention of petitioner, he failed to establish that termination of respondents' visitation rights would be in the best interests of his son because of the animosity between petitioner and respondents.   “[A]nimosity between [petitioner] and [respondents] is not a proper basis for the denial of visitation privileges to [respondents]” (Matter of Weis v. Rivera, 29 A.D.3d 812, 813, 814 N.Y.S.2d 743), particularly in the absence of any evidence of “attempts [by respondents] to sabotage [the] parent-child relationship” (Matter of McTighe v. Pearl, 8 A.D.3d 951, 952, 778 N.Y.S.2d 588, lv. dismissed 4 N.Y.3d 739, 790 N.Y.S.2d 651, 824 N.E.2d 52).   In any event, petitioner did not establish that the animosity between petitioner and respondents was negatively impacting his relationship with his son (cf. id. at 951-952, 778 N.Y.S.2d 588).   Furthermore, the record establishes that respondents have developed a meaningful relationship with their grandchild (see Weis, 29 A.D.3d at 813, 814 N.Y.S.2d 743;  cf. Matter of Follum v. Follum, 20 A.D.3d 886, 797 N.Y.S.2d 331, lv. dismissed 5 N.Y.3d 880, 808 N.Y.S.2d 142, 842 N.E.2d 28, 6 N.Y.3d 750, 810 N.Y.S.2d 418, 843 N.E.2d 1158, 6 N.Y.3d 891, 817 N.Y.S.2d 625, 850 N.E.2d 672, cert. denied 549 U.S. 888, 127 S.Ct. 288, 166 L.Ed.2d 153).   We thus agree with respondents and the Law Guardian that petitioner failed to establish that termination of respondents' visitation rights is in the best interests of his son (see generally Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380-381, 779 N.Y.S.2d 159, 811 N.E.2d 526).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: