MATTER OF MERRITT v. WAY, 58 N.Y.2d 850 (1983)

446 N.E.2d 776, 460 N.Y.S.2d 20

In the Matter of BARBARA MERRITT, Appellant, v. FRED WAY, Respondent.

Court of Appeals of the State of New York.Argued January 6, 1983
Decided February 8, 1983

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Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PEARL B. CORRADO, J.

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Abraham Hecht for appellant.

Fred Way, respondent pro se.
Barbara H. Dildine and Lenore Gittis, Law Guardians.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs. In a custody contest between parent and non-parent,

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the question of best interests is not reached absent a showing of surrender, abandonment, unfitness, persistent neglect or other extraordinary circumstance (Matter of Bennett v Jeffreys, 40 N.Y.2d 543). The Family Court found that petitioner’s evidence did not establish extraordinary circumstances. That finding having been affirmed by the Appellate Division is beyond our power of review (Laufer v Ostrow, 55 N.Y.2d 305).

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.

Order affirmed, with costs, in a memorandum.