Levine v. Tommasi

—In a habeas corpus proceeding, the appeal is from a judgment of the [945] Supreme Court, Nassau County, entered July 28, 1976, which, after a hearing, sustained the writ and directed that the parties’ infant daughter be released and discharged into the custody of the petitioner. By order dated November 29, 1976, this court remanded the proceeding to Special Term to hear and report as to whether the Indiana court considered the best interests of the child in making its determination and the appeal has been held in abeyance in the interim (Levine v Tommasi, 54 AD2d 974). Special Term has complied and rendered a report in which it answered the question in the negative. Judgment reversed, on the law, without costs or disbursements, and proceeding remanded to Special Term for a new determination in accordance herewith. The facts of the case are sufficiently set forth in this court’s decision dated November 29, 1976 (Levine v Tommasi, supra). Since there has been no determination as to the best interests of the child, Thea, a hearing is required on that issue in order to properly resolve the question of custody. Latham, J. P., Margett, Titone and Mollen, JJ., concur.