IN RE: LAUREN X. (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Delaware County (Gary A. Rosa, J.), entered December 6, 2021, which, in a proceeding pursuant to Family Ct Act article 10, granted petitioner's motion to withdraw the petition.

Respondent and Duane Y. (hereinafter the father) are the parents of the subject child (born in 2005).  Pursuant to a custody order, respondent exercised parenting time with the child in March 2021, after which time the child did not return to the father's home as planned.  Then, in May 2021, petitioner filed the instant neglect petition alleging, among other things, that the child had been completely absent from school since the end of March 2021.  During the pendency of the proceedings, petitioner sought to interview the child regarding the allegations made in the petition, as well as additional allegations that the child had made against the father and his girlfriend.  Although the record reflects some difficulty in having respondent produce the child, it appears that petitioner interviewed the child in August 2021.  Then, on December 6, 2021, petitioner transmitted a letter by email to Family Court, counsel for respondent, counsel for the father and the attorney for the child (hereinafter AFC) requesting to withdraw the petition without prejudice and to cancel the fact-finding hearing scheduled for December 14, 2021.  That same day, the court issued an order granting petitioner's request and dismissing the neglect petition.  The AFC appeals.¹

Contrary to the AFC's arguments, Family Court was not required to make findings pursuant to Family Ct Act § 1051(c), as the court's dismissal was not the result of a failure of proof following a hearing (see Matter of Sheena B. [Rory F.], 83 A.D.3d 1056, 1057, 922 N.Y.S.2d 176 [2d Dept. 2011]).  Rather, petitioner's email amounted to an application for voluntary discontinuance (see CPLR 3217[b];  Matter of Gabriel v. Morse, 145 A.D.3d 1401, 1401–1402, 42 N.Y.S.3d 877 [3d Dept. 2016];  Matter of Sheena B. [Rory F.], 83 A.D.3d at 1057, 922 N.Y.S.2d 176).²  “[W]hether an application to discontinue an action pursuant to CPLR 3217(b) should be granted lies within the sound exercise of the court's discretion, and such should be entered upon terms and conditions, as the court deems proper” (Matter of Fiacco v. Engler, 79 A.D.3d 1206, 1207, 911 N.Y.S.2d 701 [3d Dept. 2010] [internal quotation marks and citations omitted];  see Matter of Hersh v. Cohen, 171 A.D.3d 1062, 1064, 98 N.Y.S.3d 247 [2d Dept. 2019]).

We agree with the AFC that Family Court erred in granting petitioner's application to dismiss the neglect petition without allowing any time for objections to be raised.  We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” (Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 [1982];  see Hurrell–Harring v. State of New York, 112 A.D.3d 1213, 1215, 977 N.Y.S.2d 464 [3d Dept. 2013]).  However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child's welfare (see e.g. Matter of Sheena B. [Rory F.], 83 A.D.3d at 1057–1058, 922 N.Y.S.2d 176;  Matter of Houck v. Garraway, 293 A.D.2d 782, 783, 739 N.Y.S.2d 499 [3d Dept. 2002]), whether prejudice should attach to the discontinuance (see e.g. Matter of Hersh v. Cohen, 171 A.D.3d at 1064, 98 N.Y.S.3d 247;  Matter of Fiacco v. Engler, 79 A.D.3d at 1207–1208, 911 N.Y.S.2d 701) or whether another party should be permitted, in the court's discretion, to commence a neglect proceeding (see Family Ct Act § 1032[b];  see e.g. Matter of Abel XX. [Jennifer XX.], 182 A.D.3d 632, 633, 122 N.Y.S.3d 158 [3d Dept. 2020];  Matter of Amber A. [Thomas E.], 108 A.D.3d 664, 665, 969 N.Y.S.2d 162 [2d Dept. 2013];  Matter of Hannah U. [Dennis U.], 97 A.D.3d 908, 908 n. 1, 948 N.Y.S.2d 704 [3d Dept. 2012]).  Because Family Court dismissed the petition without allowing the parties – including the father as a nonrespondent parent – to present any arguments regarding petitioner's application for a discontinuance, we remit this matter to allow them the opportunity to do so.

The AFC's remaining contentions have been examined and, to the extent not expressly addressed herein, have been found to lack merit.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Delaware County for further proceedings not inconsistent with this Court's decision.

FOOTNOTES

1.   The father also appealed the order but later withdrew his appeal.

2.   The record is devoid of any objection to petitioner's use of email to circulate its application, and no challenge to service is posed on appeal.

Clark, J.

Lynch, J.P., Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.