IN RE: Tyreek DAVIS (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Kings County (Ione K. Curva, Ct. Atty. Ref.), dated August 26, 2024.  The order, without a hearing, dismissed the petitions for custody of the subject children.

ORDERED that the order is affirmed, without costs or disbursements.

The petitioner is the biological father of three children.  In April 2023, he commenced related proceedings for custody of the children.  By order dated August 26, 2024, the Family Court, without a hearing, dismissed the petitions.  The petitioner appeals.

CPLR 306–b permits a court to dismiss a proceeding without prejudice or extend the time for service upon good cause shown or in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104–105, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  “ ‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” (Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31, 883 N.Y.S.2d 99;  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  “To establish good cause, a [petitioner] must demonstrate reasonable diligence in attempting service” (Bumpus v. New York City Tr. Auth., 66 A.D.3d at 31, 883 N.Y.S.2d 99;  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  “The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the [respondent]” (OneWest Bank N.A. v. All the Heirs at Law [Moran], 240 A.D.3d 803, 805, 240 N.Y.S.3d 413 [internal quotation marks omitted];  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  In deciding whether to extend time in the interest of justice, the court may consider diligence, or lack thereof, along with other factors including “the expiration of the statute of limitations, the meritorious nature of the [proceeding], the length of delay in service, the promptness of a request by the [petitioner] for an extension, and prejudice to the [respondent]” (Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99;  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  A.K. v. T.K., 150 A.D.3d 1091, 1093, 56 N.Y.S.3d 168).  “The determination of whether to grant the extension in the interest of justice is within the discretion of the motion court” (OneWest Bank N.A. v. All the Heirs at Law [Moran], 240 A.D.3d at 805, 240 N.Y.S.3d 413;  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018).

Here, the Family Court providently exercised its discretion in declining to grant an extension of time to serve the petitions in the interest of justice.  The petitioner's parental rights were terminated in 2013, and the children were adopted.  Thus, the petitioner lacked standing, even as a biological parent, to seek custody of the children (see Matter of Davis v. ACS–Kings, 236 A.D.3d 904, 904, 228 N.Y.S.3d 327;  Matter of Mehmeti v. Dautaj, 198 A.D.3d 781, 782, 152 N.Y.S.3d 628).  As such, the petitioner failed to demonstrate that an extension of time was warranted in the interest of justice, since the petitioner failed to establish the existence of potentially meritorious proceedings (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  Brown v. Sanders, 142 A.D.3d 940, 941, 37 N.Y.S.3d 444).

Accordingly, the Family Court properly dismissed the petitions.

CHAMBERS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.