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Karen KOSOVSKY, Plaintiff-Respondent, v. Kenneth ZAHL, Defendant-Appellant.
Order, Supreme Court, New York County (Laura Visitación-Lewis, J.), entered December 3, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to consolidate this action and the Family Court action Kenneth Zahl v. Karen Ann Kosovsky (V10746-07), and order, same court and Justice, entered December 12, 2007, which, to the extent appealed from as limited by the briefs, granted Jo Ann Douglas, Esq.'s motion for reappointment as attorney for the parties' child, unanimously affirmed, without costs.
Given the extensive prior proceedings in the Supreme Court regarding visitation, child support and disqualification of the child's attorney, the Supreme Court properly determined to exercise its concurrent jurisdiction with the Family Court (see N.Y. Const., art. VI, § 7[a] ) by transferring defendant's Family Court petition for, inter alia, visitation and disqualification of the child's attorney to the Supreme Court and consolidating it with plaintiff's related child support and visitation action (see CPLR 602 [b]; Schneider v. Schneider, 127 A.D.2d 491, 494-495, 511 N.Y.S.2d 847 [1987], affd. 70 N.Y.2d 739, 519 N.Y.S.2d 962, 514 N.E.2d 382 [1987] ).
The court properly reappointed Jo Ann Douglas, Esq. as the child's attorney. The record indicates that Douglas “properly acted as the child's advocate ․ rather than as [a neutral] aide to the court in determining the child's best interests” (Rogovin v. Rogovin, 27 A.D.3d 233, 235, 812 N.Y.S.2d 41 [2006]; see Family Court Act § 249[b] ). There was no indication of a conflict of interest or hostility toward defendant (see Kaye v. Kaye, 11 A.D.3d 392, 393-394, 784 N.Y.S.2d 47 [2004] ). Nor was there any indication that Douglas would be called as a witness or that her testimony was necessary (see Rogovin at 235, 812 N.Y.S.2d 41).
The court properly ordered a Lincoln hearing to obtain “an honest expression of the child's desires and attitudes” with respect to reestablishing contact or visitation with defendant (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271-272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ). Given the child's previous accusations of inappropriate conduct by defendant and the fact that she was soon to take important examinations, the court properly scheduled the hearing for after the examinations and precluded defendant from contacting the child until after the hearing.
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Decided: June 10, 2008
Court: Supreme Court, Appellate Division, First Department, New York.
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