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

301
CAF 12-00498
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF CHESTER J. THOMAS, SR.,
PETITIONER-APPELLANT,

                     V                            MEMORANDUM AND ORDER

GABRIELLE C. SMITH, RESPONDENT-RESPONDENT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR PETITIONER-APPELLANT.


     Appeal from an order of the Family Court, Monroe County (Patricia
E. Gallaher, J.), entered February 23, 2012 in a proceeding pursuant
to Family Court Act article 6. The order dismissed the petition.

     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, Monroe County,
for further proceedings on the petition.

     Memorandum: Petitioner, an inmate at a correctional facility,
contends that Family Court erred in summarily dismissing his petition
alleging that respondent violated a prior order based on his failure
to appear by video or telephone for proceedings held on a specified
adjourned date. We agree. Although Family Court was entitled to
dismiss the petition with prejudice for failure to prosecute based on
the existence of “exceptional circumstances or an unreasonable neglect
to prosecute” (Matter of Stacey O. v Donald P., 137 AD2d 965, 966),
here there were no such exceptional circumstances, nor can it be said
on this record that there was an “unreasonable neglect to prosecute”
(id.). Indeed, the record before us does not establish the basis for
petitioner’s failure to appear by telephone or video from the
correctional facility but, rather, the court merely stated on the
record that its staff had attempted to call the correctional facility
and “didn’t get through.” We therefore reverse the order, reinstate
the petition and remit the matter to Family Court for further
proceedings on the petition.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
