O'Neill v. Nunziato , 782 N.Y.S.2d 473 ( 2004 )

Appeal from an order of the Family Court, Erie County (Kevin M. Carter, J.), entered September 11, 2003 in a proceeding pursuant to Family Ct Act article 6. The order granted the motion of respondent dismissing the petition seeking visitation with petitioner’s grandson.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings on the petition.

Memorandum: Petitioner appeals from an order of Family-Court that granted the motion of respondent and dismissed without a hearing her petition seeking visitation with her grandson pursuant to Domestic Relations Law § 72. We conclude that the court erred in dismissing the petition. Because petitioner established standing as the mother of a deceased parent, the court “must determine if visitation is in the best interest of the grandchild” (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [internal quotation marks omitted] [2004]). Present— Green, J.P., Pine, Scudder, Martoche and Hayes, JJ.