| Matter of Jonathan M. |
| 2009 NY Slip Op 03253 [61 AD3d 1374] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Jonathan M., Respondent. Erie County Attorney,Appellant. (Appeal No. 1.) |
—[*1] Sheila Sullivan Dickinson, Law Guardian, Buffalo, for respondent-respondent.
Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), enteredJanuary 9, 2008 in a proceeding pursuant to Family Court Act article 3. The order dismissed thepetition.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: These consolidated appeals arise from four juvenile delinquency petitionspursuant to Family Court Act article 3 alleging, inter alia, that respondents committed acts that,if committed by adults, would constitute the crime of assault in the third degree (Penal Law§ 120.00 [1], [2]). Two respondents moved to dismiss the respective petitions againstthem, and the two remaining respondents joined in those motions. Family Court denied thoseparts of the motions with respect to the charge of assault in the third degree. New petitions werelater filed against two respondents also alleging, inter alia, that they committed acts that, ifcommitted by adults, would constitute the crime of assault in the third degree. After the matterwas assigned to a different Family Court judge, one respondent orally moved for leave to renewhis motion to dismiss with respect to the assault charge, and the remaining respondents joined inthe motion. The court granted leave to renew and, upon renewal, granted the motions based onthe legal insufficiency of the allegations with respect to that crime.
We agree with petitioner that the court violated the doctrine of law of the case in dismissingthe petitions. That doctrine "is a rule of practice, an articulation of sound policy that, when anissue is once judicially determined, that should be the end of the matter as far as Judges andcourts of co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 NY2d162, 165 [1975], rearg denied 37 NY2d 817 [1975]). Thus, " 'a Judge may not review oroverrule an order of another Judge of co-ordinate jurisdiction in the same action or proceeding' "(Matter of Cellamare v Lakeman,36 AD3d 905, 905 [2007], appeal dismissed 8 NY3d 975 [2007]; see Anderson v Anderson, 5 AD3d1105 [2004]), as was done in these proceedings. Nevertheless, this Court is not bound by thedoctrine of law of the case because [*2]that doctrine "does notprohibit appellate review of a subordinate court's order" (Frankel v Frankel, 158 AD2d750, 751 [1990]; see Cellamare, 36 AD3d at 906; Latture v Smith, 304 AD2d534 [2003]), and we affirm the orders on appeal upon our review of the sufficiency of thepetitions pursuant to Family Court Act § 311.2.
The failure to comply with Family Court Act § 311.2 is a "nonwaivable jurisdictionaldefect that can be raised at any stage of the proceeding[s]" (Matter of Neftali D., 85NY2d 631, 637 [1995]; see Matter of Wesley M., 83 NY2d 898, 899 [1994]; Matterof Rodney J., 83 NY2d 503, 507 [1994]). Family Court Act § 311.2 (3) provides inrelevant part that "a petition is sufficient on its face when . . . non-hearsayallegations of the factual part of the petition or of any supporting depositions establish, if true,every element of each crime charged and the respondent's commission thereof." Assault in thethird degree as charged in the petitions requires the infliction of physical injury (seePenal Law § 120.00 [1], [2]), and physical injury is defined as "impairment of physicalcondition or substantial pain" (§ 10.00 [9]). Here, petitioner failed to submit the requisitenonhearsay allegations that respondents inflicted physical injury inasmuch as the petitions andsupporting documents do not contain nonhearsay allegations that either victim sustainedsubstantial pain or impairment of physical condition. The petitions therefore were properlydismissed on the ground that they are defective (see Family Ct Act § 315.1 [1][a]). Present—Smith, J.P., Fahey, Peradotto, Carni and Gorski, JJ.