Administrative
In the Matter of Jillana C., an Infant. County of Cattaraugus, Respondent; Ralph P. Kerr, Appellant
309 A.D.2d 1170765 N.Y.S.2d 290·New York Supreme Court, Appellate Division·2003·NY
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Opinion
In the Matter of Jillana C., an Infant. County of Cattaraugus, Respondent; Ralph P. Kerr, Appellant.
[765 NYS2d 290]
[MAJORITY]
Appeal from an order of Family Court, Cattaraugus County (Nenno, J.), entered February 27, 2003, which, inter alia, held Ralph P. Kerr, Superintendent of the Olean City School District, in contempt.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Family Court erred in holding the Superintendent of the Olean City School District (District) in contempt for directing school officials not to comply with an order granted by the court pursuant to Family Ct Act § 255 directing the District to evaluate a juvenile “for her suitability for classification by the Committee on Special Education and placement at the Randolph Day School.” The court granted the order without giving notice and opportunity to be heard to the District, which was not a party to the proceeding (see Matter of Support Collection Unit of Rensselaer County Dept. of Social Servs., 98 AD2d 904 [1983]). The court had “no power to grant relief against an individual or an entity not named as a party and not properly summoned before the court” (Hartloff v Hartloff, 296 AD2d 849, 850 [2002]). Furthermore, the court granted the order without regard for existing administrative procedures and thus exceeded its limited jurisdiction under section 255, which expressly provides that “such order [against a school district] shall be made only where it appears to the court or judge that adequate administrative procedure to require the performance of such duties is not available” (see generally Matter of Moron v Moron, 306 AD2d 349 [2003]; Matter of Borkowski v Borkowski, 38 AD2d 752, 753 [1972]). “Since the Family Court had no power to make the order initially, it was void ab initio for all purposes including the power to hold the Superintendent [of the District] in contempt for refusal to [abide by it]” (Matter of Fish v Horn, 14 NY2d 905, 906 [1964]; see People ex rel. Lower v Donovan, 135 NY 76 [1892]). Present — Pigott, Jr., P.J., Pine, Wisner and Kehoe, JJ.