IN RE: DAVID S.S. (2008)

Petitioner father appeals from an order of a Judicial Hearing Officer (JHO) dismissing his petition alleging that respondent mother violated the terms of an order of visitation.   We agree with the father that, because he refused to consent to the authority of the JHO to hear and determine the matter, the JHO lacked jurisdiction to dismiss the petition (see CPLR 4317 [a];  Batista v. Delbaum, Inc., 234 A.D.2d 45, 46, 650 N.Y.S.2d 219;  see also Litman, Asche, Lupkin & Gioiella v. Arashi, 192 A.D.2d 403, 596 N.Y.S.2d 371;  cf. Chalu v. Tov-Le Realty Corp., 220 A.D.2d 552, 553, 632 N.Y.S.2d 806, lv. dismissed in part and denied in part 88 N.Y.2d 959, 647 N.Y.S.2d 710, 670 N.E.2d 1341, rearg. denied 88 N.Y.2d 1040, 651 N.Y.S.2d 13, 673 N.E.2d 1240, lv. denied 91 N.Y.2d 952, 671 N.Y.S.2d 711, 694 N.E.2d 879).   We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings on the petition.

MEMORANDUM: