MATTER OF MERRITT v. WAY

MEMORANDUM.

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