| Matter of Traneil B. |
| 2007 NY Slip Op 07106 [43 AD3d 1302] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Traneil B., Appellant. Erie County Attorney,Respondent. |
—[*1] Laurence K. Rubin, County Attorney, Buffalo (Michael J. Liszewski of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Erie County (James H. Dillon, J.), enteredFebruary 9, 2007 in a proceeding pursuant to Family Court Act article 3. The order grantedpetitioner's motion to restore the proceeding to the calendar after the six-month time periodspecified in the order of adjournment in contemplation of dismissal had expired and extended thetime period for an additional six months.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs and the motion is dismissed.
Memorandum: We agree with respondent that Family Court erred in granting petitioner'smotion to restore this juvenile delinquency proceeding to the calendar after the six-month timeperiod specified in the order of adjournment in contemplation of dismissal (ACD order) hadexpired and in extending the time period for an additional six months. Contrary to petitioner'scontention, the ACD order expired on January 13, 2007 and, because the court failed to restorethe case to the calendar prior to the expiration of the ACD order, the petition was, by statute,"deemed to have been dismissed by the court in furtherance of justice" (Family Ct Act §315.3 [1]). The court's subsequent extension of the time period in the ACD order for anadditional six months was a nullity (seeMatter of Cleveland R., 14 AD3d 568, 569 [2005]; Matter of Kenyetta D., 188AD2d 830, 831 [1992]). Also contrary to petitioner's contention, it is irrelevant that petitionerfiled the motion to restore the case to the calendar prior to the expiration date set forth in theACD order, because the court did not restore the case to the calendar prior to that date (seeCleveland R., 14 AD3d at 569; Kenyetta D., 188 AD2d at 831). In any event, wenote that Family Court Act § 315.3 (1) requires the exercise of the court's discretion indetermining whether to restore a case to the calendar, and thus "the simple act of filing themotion was insufficient to restore the case to the calendar" (Kenyetta D., 188 AD2d at831). Petitioner's remaining contention is without merit. Present—Hurlbutt, J.P., Gorski,Lunn, Fahey and Peradotto, JJ.