| Matter of Hudson v Eck |
| 2010 NY Slip Op 01554 [70 AD3d 1261] |
| February 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Leslie K. Hudson, Appellant, v Kenneth R. Eck Jr.,Respondent. (And Other Related Proceedings.) |
—[*1] Joseph A. Ermeti, Sidney, for respondent. Jehed Diamond, Law Guardian, Delhi.
Cardona, P.J. Appeal from an order of the Family Court of Delaware County (Ghaleb, J.),entered September 24, 2008, which granted respondent's motion, in proceedings pursuant toFamily Ct Act article 6, to dismiss the petitions.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have beeninvolved in numerous proceedings related to the care and custody of their son (born in 1998)(see Matter of Eck v Eck, 57 AD3d 1251 [2008]; Matter of Eck v Eck, 57 AD3d1243 [2008]; Matter of Eck v Eck, 44 AD3d 1168 [2007], lv denied 9 NY3d 818[2008]; Matter of Eck v Eck, 33 AD3d 1082 [2006]). As relevant to this appeal, inOctober 2006, the father, who had legal custody of the child, was given the exclusive right toprovide for the child's medical care. The mother commenced the instant proceedings by filing acontempt petition and a custody modification petition in December 2007, followed by a violationpetition and amended custody petition in February 2008, all alleging that the father was remiss inobtaining medical care for the child. Specifically, the mother alleged that, after the parties werenotified by the school physician about a specific medical condition of the child that warrantedfurther evaluation, the father did not seek an immediate complete medical evaluation and care ofthe child.[*2]
During the course of the proceedings, the mother movedto disqualify the Law Guardian due to, among other things, alleged misrepresentations she madeto Family Court. In the absence of any timely submission in opposition thereto, Family Court(Burns, J.) granted the motion; however, the case was transferred and, following submission bythe initial Law Guardian of an affidavit in opposition to that motion, as well as disclosure of aconflict by the newly-appointed Law Guardian, Family Court (Ghaleb, J.) reappointed the initialLaw Guardian. Thereafter, the father moved to dismiss the petitions. The court granted thatmotion without a hearing and, sua sponte, "rectified" the prior order by directing that anyinformation pertaining to the child's medical status be redacted from school records, notices orreport cards prior to being sent to the mother. This appeal by the mother ensued.
Initially, we conclude that any alleged procedural defects with regard to the father's motionto dismiss were properly disregarded. The record does not demonstrate substantial prejudice tothe mother as a result of the lack of a return date on the initial motion, particularly given the factthat the matter was adjourned, providing her with ample time during which she submitted aresponse to the motion (see Matter of Venner, 235 AD2d 805, 806 [1997]; NationalMicrotech v Satellite Video Servs., 107 AD2d 860, 861-862 [1985], lvs dismissed64 NY2d 612, 65 NY2d 637 [1985]).
Furthermore, we are unpersuaded that Family Court improperly granted the motion todismiss the petitions. "To survive a motion to dismiss, a petition seeking to modify a prior orderof custody and visitation must contain factual allegations of a change in circumstanceswarranting modification to ensure the best interests of the child" (Matter of Dobrouch vReed, 61 AD3d 1288, 1289 [2009] [citations omitted]; see Matter of Perry v Perry,52 AD3d 906, 906 [2008], lv denied 11 NY3d 707 [2008]). Here, the mother'sallegations concerning, among other things, the nature and timeliness of the medical care for thechild were insufficient on their face to establish a change in circumstances or contempt. Notably,pursuant to the October 5, 2006 custody order, the father was vested with exclusiveresponsibility to provide for the child's medical care and, most importantly, the record clearlydemonstrates that the father appropriately sought the medical evaluations and treatmentsrecommended by the school physician, as well as the child's personal physicians. Under thesecircumstances, we find no error in Family Court dismissing the petitions without a hearing(see Matter of Perry v Perry, 52 AD3d at 906; Matter of Audrey K. v Carolyn L.,294 AD2d 624 [2002]).
We do, however, find merit in the mother's contention that Family Court erred in restricting,without a hearing, her right to medical information contained in school documents. Although theOctober 2006 order gave the father the exclusive right to provide medical treatment for the child,nothing in that order restricts the mother's right to access information regarding the child's healthin school documents. To the extent that Family Court modified the prior order by directing thatany medical information be redacted from school documents, we find that this improperlyimpinged upon a substantial right of the mother (see generally Herpe v Herpe, 225 NY323, 327 [1919]).
Finally, we are unpersuaded that Family Court abused its discretion in reappointing the LawGuardian.
Peters, Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is modified, onthe facts, without costs, by deleting so much thereof as directed that any information included inschool records pertaining to the child's medical status and care be redacted, and, as so modified,affirmed.