
    In the Matter of Anthony J. Marchese, Appellant, v Ursula D’Agostino, Respondent.
    [756 NYS2d 868]
   —In a habeas corpus proceeding pursuant to Domestic Relations Law § 70, the petitioner father appeals from a judgment of the Supreme Court, Suffolk County (Sgroi, J.), dated August 6, 2002, which, without a hearing, dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and a new determination.

The petitioner father brought this habeas corpus proceeding pursuant to Domestic Relations Law § 70 to obtain custody of his daughter from the respondent mother. The petition was not satisfied by the mere presence of the mother and daughter before the Supreme Court without consideration of the petitioner’s request for a change of custody and visitation (see Domestic Relations Law § 70; see generally Matter of Mutterperl v Reyes, 293 AD2d 542 [2002]; People ex. rel. Cleopa v Petras, 138 AD2d 548 [1988]). Thus, the proceeding should not have been dismissed on that ground. Ritter, J.P., Smith, Krausman and Rivera, JJ., concur.  