| Matter of Ariola v DeLaura |
| 2008 NY Slip Op 04168 [51 AD3d 1389] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Christopher D. Ariola, Appellant, v Danielle S.DeLaura et al., Respondents. |
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Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., R.),entered June 26, 2006 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, dismissed the petition and imposed a sanction upon petitioner.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the sanction imposed and as modified the order is affirmed without costs.
Memorandum: We reject the contention of petitioner that Family Court erred in dismissinghis petition seeking visitation with his two half siblings without conducting a hearing.Respondents Carol DeLaura and Edward R. DeLaura, the maternal grandparents of petitioner'shalf siblings, established that there were two orders of protection prohibiting petitioner fromhaving any contact with his half siblings, and thus there was no need for the court to conduct ahearing (see generally Matter of Bogdan v Bogdan, 291 AD2d 909 [2002]). We agreewith petitioner, however, that the court abused its discretion in sua sponte sanctioning him basedon its determination that the proceeding was frivolous. The court was required to affordpetitioner a reasonable opportunity to be heard before imposing a sanction based on his allegedfrivolous conduct (see 22 NYCRR 130-1.1 [a], [d]). Because that did not occur here, wemodify the order by vacating the sanction imposed (see generally Matter of Schermerhorn v Quinette, 28 AD3d 822,823 [2006]). We have considered petitioner's remaining contentions and conclude that they arewithout merit. Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.