Appeal from an order of the Family Court, Erie County (Sharon M. Lo Vallo, J.), entered March 15, 2011 in a proceeding pursuant to Family Court Act article 8. The order dismissed the petition without prejudice.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Petitioner mother appeals from an order
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dismissing without prejudice a family offense petition she filed in February 2011 against respondent, her children’s paternal grandmother, who has custody of the subject children. Petitioner had previously filed a family offense petition in October 2010, but she withdrew that petition and Family Court then dismissed it without prejudice. The court dismissed the February 2011 petition from the bench on March 15, 2011, immediately prior to a hearing on issues raised in a separate petition relating to custody and visitation of the subject children. Although the court initially stated in error that the February 2011 petition (hereafter, petition) was identical to the October 2010 petition, the court did not base its dismissal on that ground. Instead, the court explained that the factual allegations in the petition were “remote” and that, because the petition was filed on the eve of the trial scheduled for custody and visitation with respect to another petition, it was “nothing more than a delay tactic.” After dismissing the petition, the court noted petitioner’s objection and stated that she “can certainly appeal” from its order, which as noted above dismissed the petition without prejudice.