| Matter of Green v Tierney |
| 2009 NY Slip Op 01382 [59 AD3d 900] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard M. Green, Appellant, v Nicole M.Tierney, Respondent. |
—[*1] A.L. Beth O'Connor, Cortland, for respondent. Bridget A. O'Connor, Law Guardian, Binghamton.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered June 2, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the parties' child.
Petitioner and respondent are the unmarried parents of a child. On May 22, 2008, petitionerapplied for custody of the child without signing or having his attorney sign the petition. FamilyCourt thereafter dismissed his petition for failing to comply with the signature requirement of 22NYCRR 130-1.1a. Petitioner now appeals.
Petitioner contends that Family Court erred in dismissing his petition for not containing asignature as required by 22 NYCRR 130-1.1a. We agree. "Absent good cause shown, the courtshall strike any unsigned paper if the omission of the signature is not corrected promptly afterbeing called to the attention of the attorney or party" (22 NYCRR 130-1.1a [a]). Here, althoughit is not clear from the record whether petitioner was represented by counsel at the time thepetition was filed, there is no indication that petitioner or his attorney was given an opportunityto promptly correct the error. Nor is there any evidence that respondent has been confused orprejudiced by the error. Accordingly, we conclude that the dismissal of the unsigned petitionwithout first bringing the [*2]error to petitioner's attention so itcould be corrected was an improvident exercise of discretion (see Cardo v Board of Mgrs., Jefferson Vil.Condo 3, 29 AD3d 930, 931 [2006]; Pronti v Hogan, 278 AD2d 841, 841-842[2000]).
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the Family Court of Broome Countyfor further proceedings not inconsistent with this Court's decision.