MATTER OF PATRICIA BODEN, F/ K/ A PATRICIA KELLAM, PETITIONER-APPELLANT, V JANICE JACKSON-SILVER, RESPONDENT-RESPONDENT.

BECKERMAN & BECKERMAN LLP, ROCHESTER (GERALD BECKERMAN OF COUNSEL), FOR PETITIONER-APPELLANT. WOODS OVIATT GILMAN LLP, ROCHESTER (JAMES P. MC ELHENY OF COUNSEL), FOR RESPONDENT-RESPONDENT. ELIOT SPITZER, ATTORNEY GENERAL (GINA M. CICCONE OF COUNSEL), IN HIS STATUTORY CAPACITY UNDER EXECUTIVE LAW ?§ .....

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BECKERMAN & BECKERMAN LLP, ROCHESTER (GERALD BECKERMAN OF COUNSEL), FOR PETITIONER-APPELLANT. WOODS OVIATT GILMAN LLP, ROCHESTER (JAMES P. MC ELHENY OF COUNSEL), FOR RESPONDENT-RESPONDENT. ELIOT SPITZER, ATTORNEY GENERAL (GINA M. CICCONE OF COUNSEL), IN HIS STATUTORY CAPACITY UNDER EXECUTIVE LAW ?§ 71. MICHAEL A. ROSENBLOOM, LAW GUARDIAN, ROCHESTER, FOR BRIEANNA B. Appeal from an order of Family Court, Monroe County (Kohout, J.), entered December 29, 2000, which granted in part respondent’s motion and dismissed the petition to the extent that it alleges that Domestic Relations Law ?§ 72 is unconstitutional on its face.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying respondent’s motion in part and reinstating the petition to the extent that it alleges that Domestic Relations Law ?§ 72 is unconstitutional as applied to this case and as modified the order is affirmed without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding seeking to terminate the court-ordered visitation between her child and respondent, the child’s paternal grandmother. Family Court properly granted that part of respondent’s motion seeking dismissal of the petition to the extent that it alleges that Domestic Relations Law ?§ 72 is unconstitutional on its face ( see, Matter of Morgan v Grzesik, ___ AD2d ___ [decided Nov. 9, 2001]). The court erred, however, in granting that part of the motion seeking dismissal of the petition to the extent that it alleges that the statute is unconstitutional as applied to this case, and thus we modify the order accordingly. That determination cannot be made until a hearing on the petition is conducted, and thus we remit the matter to Family Court, Monroe County, for a hearing on the petition.

MATTER OF PATRICIA BODEN, F/ K/ A PATRICIA KELLAM, PETITIONER-APPELLANT, V JANICE JACKSON-SILVER, RESPONDENT-RESPONDENT.

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