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On July 9, 2009, the attorney for petitioners filed a motion seeking summary judgment in the above-titled proceeding. On August 5, 2009, the attorney for the respondent filed an affidavit in opposition to the motion. On August 10, 2009, the attorney for the petitioners filed a reply affirmation. The Court received an attorney affirmation from the Law Guardian on August 20, 2009 in support of the motion.

On April 16, 2009, the petitioners filed an application to modify the Decision and Order of Custody and Visitation, filed and entered on February 8, 2006, concerning the child E.S., date of birth XXXXX. K.S. is E's great-grandmother; M. L. is her great-aunt; and B.S. is her father.

The 2006 Decision and Order of Custody and Visitation order granted joint legal custody of E. to her great-grandmother and great-aunt. The Order did not grant visitation to the father. In its Decision, the Court made the following findings of extraordinary circumstances: (1) the father, through his attorney, declined to participate in the custody proceeding; (2) E's mother was murdered in March, 2005 and the father is currently incarcerated and awaiting trial for her murder; (3) E. witnessed her mother's murder; (4) after the murder of her mother, E. was placed with Ms. S. and Ms. L. by the authorities, and she continues to reside with them; and (5) Ms. S. and Ms. L. have provided an appropriate home and care for E., and they have also arranged for counseling for E.

In their petition for modification of the 2006 custody order, Ms. S. and Ms. L. make the following allegations: (1) after his conviction of manslaughter in the second degree in connection with the death of E's mother, Mr. S. was incarcerated in a State facility; (2) Mr. S. was also convicted of endangering the welfare of a child as E. not only witnessed the strangulation of her mother by Mr. S. but was left to perish after he left her in the apartment, having turned on the natural gas supply to the stove; (3) E. was greatly traumatized by these events and has undergone approximately three years of counseling; and (4) when E. learned that Mr. S's mother was attempting to provide her with flowers on behalf of Mr. S., E. became quite upset and stated that she does not wish any contact, direct or indirect, with Mr. S. Pursuant to Section 656 of the Family Court Act (FCA), the petitioners seek an order of protection prohibiting either the father or any person on his behalf from any contact with E. or the petitioners until she reaches the age of 18 years.

Citing Section 3212 of the Civil Practice Law and Rules (CPLR), the attorney for the petitioner moves the Court for summary judgment stating that there are no applicable questions of law or fact in this proceeding. The attorney attached a Certificate of Conviction to the petitioners' affidavit attesting to Mr. S's convictions of manslaughter in the second degree and endangering the welfare of a child with a sentence of 1 year on the endangering conviction and from 1 to 21 years on the manslaughter conviction. The attorney also attached an affidavit from a licensed social worker who provided counseling to E. stating that it is her position that E's severe emotional trauma as a result of the death of her mother would be exacerbated by any direct contact with Mr. S. or contact through his friend, colleague, or family members.

The attorney for Mr. S. makes the following arguments: (1) Mr. S., who is incarcerated, has requested to be transported to Court and his requests have not been granted; (2) the Court does not have jurisdiction over Mr. S's family or friends and, therefore, may not order them to stay away from E. or the petitioners; (3) the Court does not have jurisdiction to order Mr. S. to stay away from the petitioners; and (4) there is a question of fact as to whether indirect contact would harm E.

In his reply, the attorney for the petitioners cites appellate case law holding that an attorney affirmation without an accompanying client's affidavit is "patently insufficient to defeat a motion for summary judgment." He also states that the attorney has submitted nothing in the form required by law to oppose any of the factual assertions set forth in the petitioners' affidavit.

The Law Guardian indicated that it would be in the best interests of his client to grant the motion for summary judgment and to disallow any contact, direct or indirect, between his client and the father.

Rule 3212 of the CPLR states that summary judgment may be granted when the court finds that there are no triable issues of material facts. In its decision, the court must construe the evidence which is submitted in support and in opposition to the motion in the light most favorable to the moved-against party. The motion must be supported (and opposed) only by those with first-hand knowledge of the facts. Unless an attorney has first-hand knowledge of some fact, the attorney's affirmation has no probative value. Any fact alleged in the movant's affidavit must be answered in the opposing affidavit or it is deemed to be admitted.Section 656 of the FCA empowers the Court to grant an order of protection with various terms and conditions as an adjunct to an order of custody in favor of any other party or the child. Therefore, the Court has the authority to grant the petitioners' requested relief as to the order of protection for themselves and the child. There are also appellate decisions which uphold the authority of the Family Court to grant a stay away/no contact order until the child reaches her 18th birthday. Abare v. St. Louis, 51 AD3d 1069; Royea v. Hutchings, 260 AD2d 678.

After its review of the pleadings and papers and after hearing oral argument, the Court finds as follows: (1) the allegations asserted in the petition are sufficient to proceed in a custody modification action (Krista I. v. Gregory I., 8 AD3d 696); (2) the Court set a date for motion papers to be filed at the May 19, 2009 appearance date and heard the oral argument on September 2, 2009, which afforded all of the parties sufficient time to file and respond to motion papers; (3) it is the custom of the Court to order the transport of an incarcerated party only at the time of [*3]trial; therefore the father, who has been represented through counsel, has not been prejudiced; (4) there are no matters of law or fact which need to be addressed at trial as it is undisputed that the petitioners are the legal custodians of the child, that father was convicted not only for the death of the mother but also for endangering the child, and that the child's therapist and Law Guardian recommend no direct or indirect contact with the father (Piwowar v. Glosek, 53 AD3d 1121); (5) the Court is authorized by FCA §656 to grant the relief requested by the petitioners; and (6) the Court has searched the statewide registry of orders of protection, the sex offender registry, arrest warrant records, and the Family Court's child protective records; has notified the attorneys for the parties and the child of the results; and finds that there are no new results which impact the decision of the Court in this proceeding.

Accordingly, the petitioners' motion for summary judgment is granted, and the Court will issue a separate Order of Protection which, among other conditions, will prohibit the father from directly or indirectly contacting the child or the petitioners until the child reaches her 18th birthday. The attorney for the petitioners is directed to obtain personal service on the father and arrange for service by mail on his clients and the attorneys.