Matter of Wilda C. v Miguel R.

2016 NY Slip Op 01408 [136 AD3d 597]

February 25, 2016

Appellate Division, First Department

As corrected through Wednesday, March 23, 2016

[*1]

In the Matter of Wilda C., Appellant, v MiguelR., Respondent.

Kenneth M. Tuccillo, Hastings on Hudson, for appellant.

Order, Family Court, New York County (Jane Pearl, J.), entered on or about May 20,2015, which dismissed with prejudice the emergency petition for temporary custody ofthe subject child due to lack of jurisdiction, unanimously affirmed, without costs.

The court lacks jurisdiction under the Uniform Child Custody JurisdictionEnforcement Act (Domestic Relations Law § 76-a), since the child lives inPuerto Rico with respondent father, who was granted custody in 2009 (74 AD3d 631 [1stDept 2010]). Since petitioner mother conceded that the child was not present in NewYork, and her allegations regarding an emergency were entirely unsubstantiated, thecourt properly determined that it could not assert temporary emergency jurisdiction(Domestic Relations Law § 76-c; see Matter of Maura B. v Giovanni P., 111 AD3d 443, 444[1st Dept 2013]). Furthermore, in the absence of jurisdiction, it was not error for thecourt to dismiss the petition with prejudice without conducting a hearing.Concur—Friedman, J.P., Sweeny, Saxe and Gische, JJ.