In re David R. , 150 A.D.2d 161 ( 1989 )

Order, Family Court, New York County (George Jurow, F.C.J.), entered on or about January 27, 1988, which dismissed the petition, reversed, on the law, the petition reinstated, and the matter remanded for a dispositional hearing pursuant to Family Court Act § 350.1 et seq.

Following a fact-finding hearing on December 7, 1987, at which respondent was adjudged to have committed an act which, if done by an adult, would constitute the crime of unauthorized use of a vehicle, this juvenile delinquency proceeding was adjourned for a dispositional hearing. On the scheduled hearing date, January 27, 1988, the Probation Department caseworker informed the court that she had been unable to complete the investigation and report (I&R) because of a heavy workload and a death in her family, and requested a few days in which to do so. Respondent’s counsel objected to any adjournment, and moved to dismiss the petition. The court granted the motion to dismiss, stating that he was "constrained” to do so under the law. This was error.

Pursuant to Family Court Act § 350.1 (3) (a), the court may, in its discretion, adjourn a dispositional hearing for up to 10 days where "good cause” for the delay is shown. In the case at bar, the court acknowledged that the Probation Department’s failure to timely complete the I&R "was not either willful or the product of incompetency, neglect or substantial oversight”, that this agency had acted in good faith, and that it was "essentially not at fault” for the circumstances necessitating an adjournment. In light of these findings, the Judge was not, as he believed, "without power” or proper grounds to grant a "good cause” adjournment, since such a determination must be made on a case-by-case basis (Matter of Frank C., 70 NY2d 408, 414), and no one factor or combination of factors is necessarily dispositive thereof. (People ex rel. Broomfield v Schall, 132 Misc 2d 846, 848.)

Nor does this case involve the strict enforcement of time requirements generally applied to fact-finding hearings (see, Matter of Frank C., supra; Matter of Vincent M., 125 AD2d 60, affd 70 NY2d 793), for "there is a significant distinction between the case where the respondent is accused but there has been no fact finding, and the case where the petition has been sustained after a hearing and what remains is only disposition.” (Matter of Gregory C., 131 Misc 2d 685, 686.)

Finally, we note that although the court was aware that the dispositional hearing date had been scheduled for one day beyond the 50-day period specified in Family Court Act § 350.1 (2), this was not a factor in the court’s determination to dismiss the petition. Indeed, to the extent that the one-day delay was raised by respondent’s counsel, it was solely in the context of the adjournment being requested for completion of the I&R. On this record, and in light of the fact that respondent was not in detention while awaiting his dispositional hearing, this circumstance does not warrant dismissal.

Accordingly, the order of the Family Court is reversed, the petition is reinstated, and the matter remanded for a dispositional hearing. Concur—Sullivan, J. P., Carro, Kassal and Wallach, JJ.