IN RE: Proceeding (2004)

Order, Family Court, New York County (Susan Larabee, J.), entered on or about January 23, 2003, which dismissed petitioner's application for a change in visitation of the subject child with prejudice, unanimously modified, on the law and the facts, to vacate that part of the order providing that the dismissal is with prejudice and provide instead that petitioner may re-file her application in Supreme Court before Justice Lobis, and otherwise affirmed, without costs.

Family Court dismissed the petition for a change in visitation on the ground that petitioner brought the petition only after substantially similar relief was denied in Supreme Court.   The record indicates that the parties' dispute over visitation has been pending in Supreme Court for some four years, first before Justice Diamond and then Justice Lobis, and that those Justices rendered decisions on at least nine different applications.   While Family Court might, under these circumstances, properly decline to facilitate petitioner's evident attempt to escape the established Supreme Court forum, the Family Court petition should not have been dismissed with prejudice since careful review of the Supreme Court proceedings and the instant petition alleging new circumstances discloses that petitioner's prior applications sought different relief on different facts.