Matter of Vega v. Vega , 993 N.Y.S.2d 118 ( 2014 )

Matter of Vega v Vega (2014 NY Slip Op 06323)

Matter of Vega v Vega

2014 NY Slip Op 06323

Decided on September 24, 2014

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 September 24, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.

2013-05830
(Docket No. V-891-13)

[*1]In the Matter of Orlando Vega, appellant,

v

Luz Martos Vega, respondent, Marvin Suitt, respondent- respondent.

Jeanette Madera, Hyde Park, N.Y., for appellant.

Betty J. Potenza, Highland, N.Y., for respondent-respondent Marvin Suitt.

Joseph Petitio, Poughkeepsie, N.Y., for respondent Luz Martos Vega.

Gary E. Lane, Poughkeepsie, N.Y., attorney for the child.

DECISION & ORDER

In a custody proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Dutchess County (Posner, J.), dated May 28, 2013, which, without a hearing, granted the application of the respondent Marvin Suitt to dismiss the proceeding.

ORDERED that the order is affirmed, without costs or disbursements.

The subject child was born to the respondent Luz Martos Vega (hereinafter the mother) while the mother was married to the petitioner. The respondent Marvin Suitt commenced a paternity proceeding alleging that he is the father, in which the petitioner had a full and fair opportunity to present evidence. In that proceeding, the petitioner failed to appear before the court and failed to submit to genetic marker testing, and the court found the petitioner to be in default. After a hearing, in which the court found that the presumption of legitimacy was rebutted, Suitt was declared to be the father of the subject child. The petitioner subsequently commenced the instant custody proceeding, seeking custody of the subject child.

The Family Court properly granted Suitt's application to dismiss this proceeding. A nonparent may have standing to seek custody of a child in the event of extraordinary circumstances, such as abandonment, persistent neglect, or unfitness by the parents (see Matter of Bennett v Jeffreys, 40 NY2d 543, 545). Here, however, the petitioner made no allegation of extraordinary circumstances, and the prior determination as to paternity precludes him from claiming that he is a parent (see Matter of Marquis B. v Alexis H., 110 AD3d 790). Accordingly, the Family Court properly dismissed the proceeding, without a hearing, for lack of standing (see Matter of Goodale v Nash, 36 AD3d 703).

We have not considered materials submitted or factual allegations made by the petitioner that are dehors the record (see Matter of Gowda v Reddy, 105 AD3d 957; Mendoza v Plaza Homes, LLC, 55 AD3d 692).

The mother's remaining contention is without merit.

MASTRO, J.P., BALKIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court