

Matter of Werner v Werner (2020 NY Slip Op 03791)





Matter of Werner v Werner


2020 NY Slip Op 03791


Decided on July 8, 2020


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 8, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
BETSY BARROS, JJ.


2019-02889	ON MOTION
 (Docket Nos. F-785-15/18E, F-785-15/18F)

[*1]In the Matter of Richard Werner, respondent,
vRoni Werner, appellant.


Appeal by Roni Werner from an order of the Family Court, Suffolk County, dated February 25, 2019. By decision and order on motion dated November 25, 2019, this Court granted the appellant's motion for a reconstruction hearing with respect to the minutes of a hearing which occurred on December 10, 2018, and referred the matter to the Family Court, Suffolk County, for a reconstruction hearing. In a report dated January 29, 2020, the Family Court, Suffolk County, determined that the minutes of the hearing which occurred on December 10, 2018, could not be reconstructed. By order to show cause dated February 25, 2020, the parties to the appeal were directed to show cause before this Court why an order should or should not be entered granting summary reversal of the order dated February 25, 2019, on the ground that the Family Court, Suffolk County, determined that the minutes of the hearing which occurred on December 10, 2018, could not be reconstructed.

DECISION & ORDER
Now, upon the order to show cause and the papers filed in response thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the order dated February 25, 2019, is summarily reversed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for further proceedings on the underlying petitions.
This appeal is from an order of the Family Court, Suffolk County, which denied the appellant's objections to an order of the Support Magistrate and relieved the Legal Aid Society of Suffolk County as assigned counsel for the appellant and assigned new counsel. By decision and order on motion dated November 25, 2019, this Court granted the appellant's motion for a reconstruction hearing with respect to the minutes of the underlying fact-finding hearing which occurred on December 10, 2018, and referred the matter to the Family Court, Suffolk County, for a reconstruction hearing. In a report dated January 29, 2020, the Family Court, Suffolk County, determined that the minutes of the fact-finding hearing which occurred on December 10, 2018, could not be reconstructed.
Under the circumstances presented, where the virtual entirety of the underlying fact-finding hearing cannot be reconstructed, the appellant is entitled to summary reversal of the order dated February 25, 2019 (see Matter of Kelly v Johnson, 53 AD3d 580).
DILLON, J.P., COHEN, MILLER and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


