         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
76
CAF 11-01053
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF DEYA L. WILEY,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SYLVIA GREER, RESPONDENT-RESPONDENT.


DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR PETITIONER-APPELLANT.

WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-RESPONDENT.

CHARLES A. MESSINA, ATTORNEY FOR THE CHILDREN, HAMBURG, FOR ALEYAH A.
AND DAJAE A.

ELISABETH M. COLUCCI, ATTORNEY FOR THE CHILD, BUFFALO, FOR AMILEYAN A.


     Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered March 15, 2011 in a proceeding pursuant to
Family Court Act article 8. The order dismissed the petition without
prejudice.

     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 in accordance with the following Memorandum:
Petitioner mother appeals from an order dismissing without prejudice a
family offense petition she filed in February 2011 against respondent,
her children’s paternal grandmother, who has custody of the subject
children. Petitioner had previously filed a family offense petition
in October 2010, but she withdrew that petition and Family Court then
dismissed it without prejudice. The court dismissed the February 2011
petition from the bench on March 15, 2011, immediately prior to a
hearing on issues raised in a separate petition relating to custody
and visitation of the subject children. Although the court initially
stated in error that the February 2011 petition (hereafter, petition)
was identical to the October 2010 petition, the court did not base its
dismissal on that ground. Instead, the court explained that the
factual allegations in the petition were “remote” and that, because
the petition was filed on the eve of the trial scheduled for custody
and visitation with respect to another petition, it was “nothing more
than a delay tactic.” After dismissing the petition, the court noted
petitioner’s objection and stated that she “can certainly appeal” from
its order, which as noted above dismissed the petition without
prejudice.
                                 -2-                            76
                                                         CAF 11-01053

     We agree with petitioner that the court erred in dismissing the
petition (see generally Matter of Prezioso v Prezioso, 79 AD3d 1043,
1043-1044). There was no basis for the dismissal of the petition due
to “remote” allegations inasmuch as some of respondent’s offending
conduct set forth in the petition occurred only 12 days before the
petition was filed. Indeed, respondent on appeal does not contend
that the petition was properly dismissed on remoteness grounds. There
likewise was no basis for the dismissal of the petition as a “delay
tactic” on the eve of trial because the court could have proceeded
with the hearing scheduled for custody and visitation and considered
the petition at a later date.

     As an alternative ground for affirmance (see Parochial Bus Sys. v
Board of Educ. of City of N.Y., 60 NY2d 539, 545-546), respondent
contends that the petition was facially insufficient because it was
based on hearsay allegations. That contention is raised for the first
time on appeal and thus is not properly before us (see Ciesinski v
Town of Aurora, 202 AD2d 984, 985).

     Finally, respondent contends that reversal is not warranted
because the petition was dismissed without prejudice, and petitioner
is therefore not barred from filing another petition based on the same
allegations. We reject that contention. Inasmuch as there was no
basis to dismiss the petition in the first instance, the fact that it
was dismissed without prejudice is of no moment. To the extent that
respondent is thereby challenging the appealability of an order
dismissing a petition “without prejudice,” that challenge is lacking
in merit (see e.g. Modica v Allstate Ins. Co., 294 AD2d 967).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
