SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1134 

CAF 11-01353 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ. 

 

 

IN THE MATTER OF JEAN MUKURALINDA, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

JOLIE KINGOMBE, RESPONDENT-RESPONDENT. 

 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF

COUNSEL), FOR PETITIONER-APPELLANT. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR RESPONDENT-RESPONDENT. 

MARY E. FEINDT, ATTORNEY FOR THE CHILDREN, ROCHESTER, FOR JOSHUA K.,

RACHEL K., RUTH K. AND STEVEN K. 

 

Appeal from an order of the Family Court, Monroe County (Patricia

E. Gallaher, J.), entered May 31, 2011 in a proceeding pursuant to

Family Court Act article 6. The order, among other things, awarded

sole legal custody of the subject children to respondent. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law, the motion is denied, the petition is

reinstated and the matter is remitted to Family Court, Monroe County,

for further proceedings in accordance with the following Memorandum: 

Petitioner, the alleged father of the children in question, appeals

from an order that, inter alia, dismissed his petition seeking a

modification of visitation as set forth in the prior order granting

the parties joint custody, granted respondent mother’s cross petition

seeking sole custody of the children, and vacated all prior orders. 

Family Court determined that, because the parties were not married and

there were no acknowledgments of paternity with respect to the

children (see Family Ct Act § 516-a [a]), petitioner lacked standing

to seek relief or to oppose the mother’s cross petition seeking sole

custody. That was error.

As a preliminary matter, we note that petitioner’s first language

is Swahili and an interpreter appeared on his behalf. Although

petitioner responded “no” to the court’s questions “so you are not

married” and “you did not do the marriage, right,” he previously

stated unequivocally that he and the mother were married in Africa in

a “cultural ceremony” before they emigrated to the United States. The

court interrupted petitioner’s explanation of the “cultural ceremony”

to ask questions before he had completed his response to the court’s
-2- 1134 

CAF 11-01353 

request to describe the ceremony. In response to the court’s

questions, the mother testified that the parties were not married in

Africa or in the United States. Although the court’s determination

that petitioner lacked standing should not be disturbed absent a sound

and substantial basis in the record (see generally Matter of Garland v

Goodwin, 13 AD3d 1059, 1059-1060), we conclude that the determination

is not supported by the requisite sound and substantial basis in the

record in view of petitioner’s contradictory testimony through the

interpreter. 

In any event, based upon the doctrine of judicial estoppel, we

conclude that the court erred in granting the mother’s motion seeking

to dismiss the petition to modify visitation and to vacate all prior

orders. In opposition to the motion, petitioner provided the court

with prior sworn petitions wherein the mother asserted that petitioner

was the father of the children. Indeed, the mother swore in one

petition that she and petitioner were “married in Africa on 6/28/98,”

which is in direct contravention of her sworn testimony that she and

petitioner were never married. We conclude that judicial estoppel is

properly applied here, where “a party to an action has secured a[n

order] in his or her favor by adopting a certain position and then has

sought to assume a contrary position in another action simply because

his [or her] interests have changed” (Anonymous v Anonymous, 137 AD2d

739, 741; see generally Secured Equities Invs. v McFarland, 300 AD2d

1137, 1138; Abramovich v Harris, 227 AD2d 1000, 1001). In light of

our decision, we further conclude that the court erred in granting the

cross petition. We therefore reverse the order, deny the motion,

reinstate the petition and remit the matter to Family Court, Monroe

County, for further proceedings on the petition and cross petition

before a different judge.

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court