BODEN v. JACKSON SILVER (2002)

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

Matter of Patricia BODEN, f/k/a Patricia Kellam, Petitioner-Appellant, v. Janice JACKSON-SILVER, Respondent-Respondent.

Decided: February 01, 2002

PRESENT: PINE, J. P., WISNER, KEHOE, GORSKI and LAWTON, JJ.

Beckerman & Beckerman, LLP, Rochester (Gerald Beckerman of counsel), for Petitioner-Appellant. Woods Oviatt Gilman, LLP, Rochester (James P. Mc Elheny of counsel), for Respondent-Respondent. Eliot Spitzer, Attorney General (Gina M. Ciccone of counsel), In His Statutory CapacityUnder Executive Law§ 71. Michael A. Rosenbloom, Law Guardian, Rochester, for Brieanna B.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying respondent's motion in part and reinstating the petition to the extent that it alleges that Domestic Relations Law § 72 is unconstitutional as applied to this case and as modified the order is affirmed without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding seeking to terminate the court-ordered visitation between her child and respondent, the child's paternal grandmother. Family Court properly granted that part of respondent's motion seeking dismissal of the petition to the extent that it alleges that Domestic Relations Law § 72 is unconstitutional on its face (see, Matter of Morgan v. Grzesik, 287 A.D.2d 150, 732 N.Y.S.2d 773). The court erred, however, in granting that part of the motion seeking dismissal of the petition to the extent that it alleges that the statute is unconstitutional as applied to this case, and thus we modify the order accordingly. That determination cannot be made until a hearing on the petition is conducted, and thus we remit the matter to Family Court, Monroe County, for a hearing on the petition.

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