Matter of Gagliardi v. Ciccone

Matter of Gagliardi v Ciccone (2020 NY Slip Op 07059) Matter of Gagliardi v Ciccone 2020 NY Slip Op 07059 Decided on November 25, 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 November 25, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. 2020-00343 (Docket No. V-14356-19) [*1]In the Matter of Alyce Gagliardi, appellant, v Alexandra Ciccone, et al., respondents. Alyce Gagliardi, Lindenhurst, NY, appellant pro se. DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Suffolk County (Victoria R. Gumbs, Ct. Atty. Ref.), dated December 3, 2019. The order, without a hearing, denied the maternal grandmother's petition pursuant to Domestic Relations Law § 72 for grandparent visitation with the subject child and dismissed the proceeding. ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a hearing on the issue of the maternal grandmother's standing to seek grandparent visitation and a new determination of the maternal grandmother's petition thereafter. The petitioner (hereinafter the grandmother) is the maternal grandmother of the subject child. In September 2019, the grandmother filed a petition pursuant to Domestic Relations Law § 72(1) for grandparent visitation with the child. In an order dated December 3, 2019, the Family Court denied the grandmother's petition without a hearing and dismissed the proceeding. The grandmother appeals. "When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry" (Matter of Sands v Sands, 174 AD3d 628, 629 [internal quotation marks and citation omitted]). "First, it must find that the grandparent has standing, based on, inter alia, equitable considerations" (Matter of Brancato v Federico, 118 AD3d 986, 986 [internal quotation marks omitted]). "If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child" (Matter of Gray v Varone, 101 AD3d 1122, 1123). "In considering whether a grandparent has standing to petition for visitation based upon 'circumstances show[ing] that conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72[1]), 'an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,' among other factors" (Matter of Lipton v Lipton, 98 AD3d 621, 621, quoting Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182). In cases where the relationship between the grandparent and grandchild has been frustrated by a parent, the grandparent must show, inter alia, that a sufficient effort was made to establish a relationship with the child, and the sufficiency of the grandparent's efforts is measured against what they could have reasonably done [*2]under the circumstances (see Matter of Emanuel S. v Joseph E., 78 NY2d at 182-183; Matter of Sands v Sands, 174 AD3d at 629). Contrary to the Family Court's determination, the allegations in the grandmother's petition gave rise to factual issues which must be resolved at a hearing to determine standing (see Matter of Galizia v Drucker, 185 AD3d 1030, 1031-1032; Matter of Sands v Sands, 174 AD3d at 630). Those factual issues include, among other things, the grandmother's efforts to establish a relationship with the child and the mother's alleged attempts to frustrate that relationship (see Matter of Galizia v Drucker, 185 AD3d at 1032; Matter of Sands v Sands, 174 AD3d at 630). Accordingly, the Family Court should not have denied the grandmother's petition without first conducting a hearing. RIVERA, J.P., AUSTIN, COHEN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court