Opinion
2012-06-28
In re ANTONIO DWAYNE G., Petitioner–Appellant, v. ERICKA MONTE E., Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel), attorney for the child.
Leslie S. Lowenstein, Woodmere, for appellant. Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel), attorney for the child.
Order, Family Court, New York County (Carol J. Goldstein, Referee), entered on or about August 30, 2010, which, to the extent appealed from as limited by the briefs, granted, without a hearing, respondent mother's motion to dismiss petitioner father's petition to modify an order of custody, unanimously affirmed, with costs. Appeal from order, same court and Referee, entered on or about December 7, 2010, which, to the extent appealed from as limited by the briefs, denied petitioner's application to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.
Family Court providently exercised its discretion in declining to hold a hearing before it dismissed the petition to modify the existing custody arrangement. A court is not required to conduct a hearing whenever a party moves for a change in custody especially where, as here, the claims are “speculative and frivolous” ( David W. v. Julia W., 158 A.D.2d 1, 6, 557 N.Y.S.2d 314 [1990] ). Indeed, the record shows that respondent did not medically neglect the child.
To the extent petitioner sought to reargue the motion dismissing his petition, the denial of his application is not appealable ( see McCoy v. Metropolitan Transp. Auth., 75 A.D.3d 428, 430, 904 N.Y.S.2d 50 [2010] ).