| Matter of Robert C. v Katherine D. |
| 2008 NY Slip Op 08538 [56 AD3d 297] |
| November 13, 2008 |
| Appellate Division, First Department |
| In the Matter of Robert C., Appellant, v Katherine D.,Respondent. |
—[*1]
Order, Family Court, Bronx County (Sue Levy, Ref.), entered on or about April 9, 2007,which, in a proceeding pursuant to article 6 of the Family Court Act, dismissed the petition formodification of a prior order of visitation without prejudice, unanimously affirmed, withoutcosts.
Dismissal of the petition without prejudice due to petitioner's nonappearance at the scheduledhearing was appropriate. Although the incarcerated petitioner argues that his failure to appearwas due to the court's erroneous insistence that it would not issue an order to produce him unlesspersonal service was effected upon respondent, the record indicates otherwise. The court, whileinitially indicating that personal service of the summons and petition upon respondent wasrequired, subsequently acknowledged that the requirement would be relaxed if personal servicewas impossible (see Matter of Cruz vCruz, 48 AD3d 804, 806 [2008], lv denied 10 NY3d 712 [2008]; Family Ct Act§ 651 [b]). The court also set a date for the hearing and provided petitioner with a form tocomplete, which would have permitted him to testify electronically. However, petitioner refusedto sign the form, and on the date of the hearing, neither petitioner nor respondent appeared.Contrary to petitioner's contention, the court was not required to produce him when an alternativemeans for his participation was available. Furthermore, there is no indication that respondent wasserved with the subject petition or had notice of the hearing (see Matter of Church vChurch, 294 AD2d 625 [2002]).[*2]
We have considered petitioner's remaining contentions,including those relating to alleged violations of his constitutional rights, and find themunavailing. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.