C.O'C, Petitioner, v. M.M., Respondent.

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Family Court, Westchester County, New York.

C.O'C, Petitioner, v. M.M., Respondent.

Decided: October 27, 2009

Parisi and Patti, LLP, Eugene Dougherty, Esq., Therese R. Malach, Esq., Law Guardian for the Subject Child, White Plains, Attorney for Respondent. Gregory Salant, Esq., Harold, Salant, Strassfield and Spielberg, LLP, White Plains, Attorney for Petitioner.

On August 14, 2009, Respondent filed a motion seeking to have this Court direct Respondent's prior counsel, Eugene Dougherty, Esq., turn over to Respondent's new counsel, Clement S. Patti, Jr., Esq, any and all contents of the file Mr. Dougherty maintained in this matter.

On August 20, 2009, Eugene Dougherty, Esq., filed with this Court a notice of cross motion and affirmation in opposition seeking to have this Court to (1) dismiss Respondent's motion;  (2) grant him a retaining lien on Respondent's file;  (3) ordering that the file be turned over to the Respondent upon payment of the counsel fees;  and (4) provide such other relief the court may find just and proper.

On August 21, 2009, Therese R. Malach, Esq., filed an affirmation in support of Respondent's motion.

For the reasons set forth below, the Court dismisses Respondent's motion and Mr. Dougherty's cross motion for lack of subject matter jurisdiction.

 The Family Court is a court of limited jurisdiction in New York with its jurisdiction specifically defined by statute and the Constitution of the State of New York. See Burns v. Burns, 53 Misc.2d 484, 278 N.Y.S.2d 669 (1967);  see also, Graham v. Graham, 43 Misc.2d 89, 249 N.Y.S.2d 899 (1964).

The Constitution of the State of New York, Article VI § 13 (“N.Y. CLS Const. Art. VI, § 13”), expressly denotes the establishment of Family Courts in the State of New York and the jurisdictional powers granted by New York Legislature.   New York CLS Const., Art. VI § 13(b) and (c), specifies, in relevant part, that “the family court shall have jurisdiction over ․ (1) the protection, treatment, correction and commitment of those minors who are in need of the exercise of authority of the court because of circumstances of neglect, delinquency or dependency, as the legislature may determine;  (2) the custody of minors except for custody incidental to actions and proceedings for marital separation, divorce, annulment of marriage and dissolution of marriage;  (3) the adoption of persons;  (4) the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage;  (7) the guardianship of the person of minors and, in conformity with the provisions of section seven of this article, crimes and offenses by or against minor or between spouses or between parents and child or between members of the same household or family.

The Family Court also shall have jurisdiction to determine, with the same powers possessed by the supreme court, the following matters when referred to the family court from the supreme court:  habeas corpus proceedings for the determination of the custody of minors;  and, in actions and proceedings for marital separation, divorce, annulment of marriage and dissolution of marriage, applications to fix temporary or permanent support and custody, or applications to enforce judgments and orders of support and of custody, or applications to modify judgments and orders of support and of custody which may be granted only upon the showing to the family court that there has been a subsequent change of circumstances and that modification is required.   See Matter of Emily K. v. Matthew K., 120 Misc.2d 561, 466 N.Y.S.2d 190 (1983).

 Here, Respondent is seeking to have this Court exercise its jurisdiction and issue a ruling as to a common law lien and Mr. Dougherty seeks the same and also asks the court to determine the validity of a contract term between Respondent and Mr. Dougherty.   This Court does not have the statutory authority or jurisdiction to hear either matter.   See N.Y. CLS Const. Art. VI § 13(b) and (c);  see also, Moraitis v. Moraitis, 181 Misc.2d 510, 694 N.Y.S.2d 588 (1999)(Supreme Court is forum for determining common law liens and contracts).

Therefore, in light of the foregoing, it is

ORDERED that Respondent's motion seeking to have Eugene Dougherty, Esq. turn over the file he maintained when representing Respondent is hereby dismissed in its entirety for lack of jurisdiction as is Mr. Dougherty's cross-motion.

This constitutes the Decision and Order of this Court.


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