

Franco v Franco (2015 NY Slip Op 02930)





Franco v Franco


2015 NY Slip Op 02930


Decided on April 8, 2015


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 April 8, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
RUTH C. BALKIN
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.


2013-08582
 (Index No. 28824/04)

[*1]Matthew Franco, respondent, 
vDeneen Franco, appellant.


Michael J. Reily, Kew Gardens, N.Y., for appellant.
Campagna Johnson, P.C., Hauppauge, N.Y. (Christopher J. Chimeri of counsel), for respondent.

DECISION & ORDER
Appeal from an order of the Supreme Court, Suffolk County (Marion T. McNulty, J.), dated June 24, 2013. The order denied, as academic, the defendant's motion for a judicial subpoena duces tecum for records of the Commissioner of Social Services.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a determination, on the merits, of the defendant's motion for a judicial subpoena duces tecum for records of the Commissioner of Social Services.
The defendant moved to modify joint custody provisions of stipulations of settlement which were incorporated but not merged into a judgment of divorce, seeking an award of sole custody of the parties' children. In connection with that motion, the defendant also moved for a judicial subpoena duces tecum for certain records from the Commissioner of Social Services, which, she contended, were relevant to her request for sole custody of the children. The Supreme Court denied the motion to modify the custody provisions of the stipulations of settlement (see Franco v Franco, _____ AD3d _____ [Appellate Division Docket No. 2013-08893, decided herewith][hereinafter the companion appeal]) and, in the order appealed from, denied, as academic, the defendant's motion for a judicial subpoena duces tecum.
In the companion appeal, we determined that a hearing is necessary with respect to those branches of the defendant's motion which were to modify the custody provisions of the stipulations of settlement, and we remitted the matter to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the relevant branches of the defendant's motion. In light of that determination, the defendant's motion for a judicial subpoena duces tecum is not academic. Accordingly, we reverse the order denying the defendant's motion for a judicial subpoena duces tecum for records of the Commissioner of Social Services, and remit the matter to the Supreme Court, Suffolk County, for a determination of that motion on the merits (see Sesina v Joy Lea Realty, LLC, 123 AD3d 1000, 1000-1001; Cohen v Cohen, 73 AD3d 832, 834).
SKELOS, J.P., BALKIN, ROMAN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


