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Vega v. Vega

120 A.D.3d 1427 Court N.Y. App. Div. Decision date 2014-09-24 English

Judges Mastro, J.E, Balkin, Sgroi and LaSalle, JJ., concur.

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p. 1427
In the Matter of Orlando Vega, Appellant, v Luz Martos Vega, Respondent, and Marvin Suitt, Respondent.
[993 NYS2d 118]

In a custody proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Dutchess County (Posner, J.), dated May 28, 2013, which, without a hearing, granted the application of the respondent Marvin Suitt to dismiss the proceeding.

Ordered that the order is affirmed, without costs or disbursements.

The subject child was born to the respondent Luz Martos Vega (hereinafter the mother) while the mother was married to the petitioner. The respondent Marvin Suitt commenced a paternity proceeding alleging that he is the father, in which the petitioner had a full and fair opportunity to present evidence. In that proceeding, the petitioner failed to appear before the court and failed to submit to genetic marker testing, and the court found the petitioner to be in default. After a hearing, in which the court found that the presumption of legitimacy was rebutted, Suitt was declared to be the father of the subject child. The petitioner subsequently commenced the instant custody proceeding, seeking custody of the subject child.

The Family Court properly granted Suitt’s application to dismiss this proceeding. A nonparent may have standing to seek custody of a child in the event of extraordinary circumstances, such as abandonment, persistent neglect, or unfitness by the parents (see Matter of Bennett v Jeffreys, 40 NY2d 543 , 545

p. 1428
[1976]). Here, however, the petitioner made no allegation of extraordinary circumstances, and the prior determination as to paternity precludes him from claiming that he is a parent (see Matter of Marquis B. v Alexis H., 110 AD3d 790 [2013]). Accordingly, the Family Court properly dismissed the proceeding, without a hearing, for lack of standing (see Matter of Goodale v Nash, 36 AD3d 703 [2007]).

We have not considered materials submitted or factual allegations made by the petitioner that are dehors the record (see Matter of Gowda v Reddy, 105 AD3d 957 [2013]; Mendoza v Plaza Homes, LLC, 55 AD3d 692 [2008]).

The mother’s remaining contention is without merit.

Mastro, J.E, Balkin, Sgroi and LaSalle, JJ., concur.

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