        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1167
CAF 15-01575
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF MICHELLE K. RUSIECKI,
PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

AARON J. MARSHALL, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


DEBORAH J. SCINTA, ORCHARD PARK, FOR PETITIONER-APPELLANT.

NUCHERENO & NAGEL, BUFFALO (MARTEN R. VIOLANTE OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

MICHELE A. BROWN, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Mary G.
Carney, J.), entered August 18, 2015 in a proceeding pursuant to
Family Court Act article 6. The order granted respondent’s motion to
dismiss the petition and dismissed the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
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 commenced this proceeding
seeking to modify a June 2011 custody order, entered by a court in the
State of Florida, which granted respondent father permission to
relocate with the child to New York. The father and the child
relocated to New York in June 2011, and the mother relocated to New
York in August 2011. The parties continued to reside in New York
through March 2015, when the mother commenced the instant proceeding.
We agree with the mother that Family Court erred in granting the
father’s motion to dismiss her petition for lack of jurisdiction on
the ground that the Florida court’s order expressly provided that it
retained jurisdiction over the matter.

     Preliminarily, we note that the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) has been adopted by both New
York and Florida (see Domestic Relations Law art 5-A; Fla Stat
§ 61.501 et seq.).

     We conclude that the New York court has jurisdiction to modify
the order of the Florida court, notwithstanding the Florida court’s
reservation of jurisdiction. Pursuant to Domestic Relations Law
                                 -2-                          1167
                                                         CAF 15-01575

§§ 76-b (2) and 76 (1) (a), a New York court may modify a child
custody determination of another state when “[a] court of this state .
. . determines that the child[ and] the child’s parents . . . do not
presently reside in the other state” (§ 76-b [2]), and New York “is
the home state of the child on the date of the commencement of the
proceeding” (§ 76 [1] [a]). Here, it is undisputed that New York was
the child’s home state as of the commencement of the proceeding (see
§ 75-a [7]), and that the child and both of the parties had lived in
New York since 2011 (see Matter of Guzman v Guzman, 92 AD3d 679, 680;
cf. Matter of Saunders v Hamilton, 75 AD3d 1172, 1173, lv denied 15
NY3d 713). Contrary to the father’s contention, the four-year period
during which the child lived in New York cannot be considered a
temporary absence from Florida for purposes of the UCCJEA inasmuch as
the child was enrolled in school in New York and there is no
indication in the record that she returned to Florida during that
period (see Matter of Clouse v Clouse, 110 AD3d 1181, 1182-1183, lv
denied 22 NY3d 858; see generally Matter of Felty v Felty, 66 AD3d 64,
70-72).

     Contrary to the contention of the Attorney for the Child, this
appeal has not been rendered moot by the commencement of subsequent
proceedings in Florida inasmuch as no orders have been entered in
those proceedings (cf. Matter of Morgia v Horning, 119 AD3d 1355,
1355). We conclude, however, that the New York court was required by
Domestic Relations Law § 76-e to confer with the Florida court upon
learning that the father commenced a subsequent proceeding in Florida,
and the court failed to do so (see Guzman, 92 AD3d at 681).
Consequently, we reverse the order, deny the motion to dismiss,
reinstate the petition, and remit the matter to Family Court to make
the requisite contact with “the Florida court so that the courts of
the two states may confer with each other and determine which state is
the more appropriate forum for this proceeding at this juncture” (id.;
see generally Matter of Andrews v Catanzano, 44 AD3d 1109, 1110-1111).

     In light of the foregoing, we do not address the mother’s
remaining contentions.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
