YARITZA v. HILARIO (2025)

Order, Family Court, Bronx County (Jessica M. Crafton, Ref.), entered April 8, 2024, which dismissed with prejudice the mother's petition for an order modifying a prior order of custody and visitation, dated January 9, 2019, unanimously modified, on the law, to the extent of deleting the provision that the dismissal of the petition is “with prejudice,” and otherwise affirmed, without costs.

Family Court providently exercised its discretion in denying the mother's adjournment request to call the maternal grandmother as a witness (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006];  see also Matter of Malachi A.D. [Zilasia D.], 180 A.D.3d 432, 433, 115 N.Y.S.3d 664 [1st Dept. 2020]).  The mother had ample time to secure the grandmother's presence at the hearing.  The record shows that the matter had been pending for approximately two and a half years, during which time the mother was represented by four different attorneys.  The mother also had four months to prepare for the new fact-finding hearing after her newly appointed attorney moved for a mistrial of the first fact-finding hearing.  At no time, including when requesting an adjournment of the fact-finding hearing, did the mother indicate that the maternal grandmother could offer any relevant testimony in support of her petition (see Matter of Anthony M. [Allison M.], 100 A.D.3d 441, 442, 953 N.Y.S.2d 215 [1st Dept. 2012]).

However, the order should be modified to the extent of deleting the provision that the dismissal of the petition is “with prejudice” (see Matter of Keidy A.R. v. Timothy L.L., 233 A.D.3d 630, 631, 224 N.Y.S.3d 61 [1st Dept. 2024]).