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

426
CA 12-02056
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF ANONYMOUS, PETITIONER-APPELLANT.
-------------------------------------------------   MEMORANDUM AND ORDER
MONROE COUNTY DISTRICT ATTORNEY’S OFFICE,
RESPONDENT-RESPONDENT.


HARTER SECREST & EMERY LLP, ROCHESTER (JULIA GREEN SEWRUK OF COUNSEL),
FOR PETITIONER-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered May 2, 2012. The order denied the amended
petition for an order authorizing a name change.

     It is hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the amended petition is reinstated,
and the matter is remitted to Supreme Court, Monroe County, for a
hearing in accordance with the following Memorandum: Petitioner, a
parolee, appeals from an order denying petitioner’s amended petition,
which requested an order authorizing a name change. The order denied
the amended petition with leave to renew upon the submission of
psychological and medical proof and upon completion of petitioner’s
parole supervision. Upon reviewing such a petition, if Supreme Court
“is satisfied . . . that the petition is true, and that there is no
reasonable objection to the change of name proposed, . . . the court
shall make an order authorizing the petitioner to assume the name
proposed” (Civil Rights Law § 63 [emphasis added]; see Matter of Golden,
56 AD3d 1109, 1110). Given the limited power to review such petitions,
“courts ordinarily grant such petitions by adults unless there is a
demonstrable reason not to do so” (Matter of Washington, 216 AD2d 781,
782). Inasmuch as the petition and amended petition contained
inconsistent information regarding the proposed name that petitioner
allegedly had been using for the past 10 years such that it was unclear
on the face of the amended petition that the allegations therein were
true (see § 63; cf. Matter of Powell, 95 AD3d 1631, 1632), we conclude
that petitioner was not entitled to an order summarily granting the
amended petition (see CPLR 409). In addition, because petitioner raised
an issue of fact as to the reasonableness of respondent’s objection to
the requested name change, the court erred in summarily denying the
amended petition, and instead should have conducted a hearing (see
generally Matter of Eberhardt, 83 AD3d 116, 121-122; Washington, 216
AD2d at 782).
                                 -2-                           426
                                                         CA 12-02056

     Finally, we agree with petitioner that the court erred in requiring
him to provide psychological and medical proof in support of the amended
petition; such proof is irrelevant when the petitioner seeks only to
assume a different name, “not a declaration of a gender ‘change[] from
male to female’ ” (Powell, 95 AD3d at 1632). Here, petitioner has not
requested a declaration regarding gender, but by the amended petition
has asked the court “only to sanction legally petitioner’s desire for a
change of name, after satisfying itself that petitioner has no
fraudulent purpose for doing so and that no other person’s rights are
interfered with thereby” (Matter of Guido, 1 Misc 3d 825, 828). As the
court in Guido wrote, “[t]he law does not distinguish between masculine
and feminine names, which are a matter of social tradition. Some names
are traditionally associated with one gender; some with the other; some
with either. And . . . the gender association of some names has changed
over time. Apart from the prevention of fraud or interference with the
rights of others, there is no reason—and no legal basis—for the courts
to appoint themselves the guardians of orthodoxy in such matters” (id.;
see Powell, 95 AD3d at 1632). With respect to the further condition
imposed by the court upon renewal, concerning parole supervision, the
parties agree that petitioner satisfied that condition. We therefore
reverse the order, reinstate the amended petition and remit the matter
to Supreme Court for a hearing consistent with our decision (see
generally Eberhardt, 83 AD3d at 118).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
