| Matter of Powell |
| 2012 NY Slip Op 04260 [95 AD3d 1631] |
| May 31, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jhirard Tahiem Powell,Appellant. |
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Mercure, J. (1) Appeal from an order of the Supreme Court (O'Shea, J.), entered August 29,2011 in Chemung County, which denied petitioner's application to assume another name, and (2)motion pursuant to CPLR 5704 (a) to vacate such order.
Petitioner, a prison inmate who was born male but self-identifies as female, commenced aproceeding for a legal name change to Shaniece Nyasia Powell. Although there was no objectionby the parties required to be notified, Supreme Court denied the application, promptingpetitioner's appeal.[FN*]We now reverse.[*2]
A court's authority to review an application for a namechange is limited; if "the petition is true, and . . . there is no reasonable objection tothe change of name proposed, . . . the court shall make an order authorizingthe petitioner to assume the name proposed" (Civil Rights Law § 63 [emphasis added]; see Matter of Golden, 56 AD3d1109, 1110 [2008]; Matter of Washington, 216 AD2d 781, 782 [1995]). Petitioner'sapplication satisfied the formal requirements of the Civil Rights Law and, accordingly, shouldhave been granted absent "a demonstrable reason" necessitating its denial (Matter ofWashington, 216 AD2d at 782; see Civil Rights Law §§ 61, 62 [2];Matter of Austin, 295 AD2d 721, 722 [2002]). Supreme Court denied the application onthe grounds that the risk of confusion and deception was high, and there was no evidencedemonstrating that "petitioner . . . has undergone sex-reassignment surgery." In ourview, those grounds are insufficient to warrant denial.
Confusion is attendant to any change of name and does not, in itself, justify denial (seeMatter of Golden, 56 AD3d at 1110; Matter of Alvarado, 166 AD2d 932 [1990]).Nor is the lack of medical evidence relevant inasmuch as petitioner seeks only to assume adifferent name, not a declaration of a gender "change[ ] from male to female" (Matter of Guido, 1 Misc 3d 825,828 [2003]; see Matter ofWinn-Ritzenberg, 26 Misc 3d 1, 3 [2009]; but see Matter of Anonymous, 155Misc 2d 241, 242 [1992]; Matter of Anonymous, 153 Misc 2d 893, 894-895 [1992]).Notably, "[t]he law does not distinguish between masculine and feminine names, which are amatter of social tradition" (Matter of Guido, 1 Misc 3d at 828). Moreover, althoughpetitioner is in prison, the District Attorney who prosecuted him, the court that sentenced him,and the agency that incarcerates him have all been put on notice of this application and have noobjection to it (see Civil Rights Law § 62 [2]). Under these circumstances, andabsent any indication of fraud, misrepresentation or intent to interfere with others' rights, weconclude that the petition should have been granted (see Matter of Golden, 56 AD3d at1111; Matter of Austin, 295 AD2d at 722; Matter of Waters, 264 AD2d 910, 910[1999]).
Peters, P.J., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, petition granted and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision.
Ordered that the motion to vacate pursuant to CPLR 5704 (a) is denied, as academic, withoutcosts.
Footnote *: In addition to filing a notice ofappeal, petitioner also sought review from this Court pursuant to CPLR 5704 (a), which governsreview of ex parte orders. Petitioner is incarcerated as the result of a conviction for a violentfelony offense, however, and placed several parties on notice of the present proceeding asrequired by Civil Rights Law § 62 (2). Supreme Court's order was thus made upon noticeand a direct appeal was available to petitioner as of right (see CPLR 5701 [a] [2]; see also Matter of Altheim, 12 AD3d993 [2004]; see generally Matter ofEberhardt, 83 AD3d 116 [2011]). Our prior decisions requiring incarcerated namechange applicants to proceed under CPLR 5704 are not to the contrary, inasmuch as they involvepetitions filed prior to the effective date of Civil Rights Law § 62 (2) (see L 2000,ch 549, §§ 2, 7; Matter of Austin, 295 AD2d 721, 722 n [2002] [involving aname change application filed in 2000]).