Opinion
06-30-2017
Patrick J. CARNEY, Plaintiff–Appellant, v. Jun W. CARNEY, Defendant–Respondent. Paul B. Watkins, Esq., Attorney for the Children, Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet Somes of Counsel), for plaintiff-appellant. Paul B. Watkins, Attorney for the Children, Fairport, Appellant Pro Se. Michael Steinberg, Rochester, for defendant-respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet Somes of Counsel), for plaintiff-appellant.
Paul B. Watkins, Attorney for the Children, Fairport, Appellant Pro Se.
Michael Steinberg, Rochester, for defendant-respondent.
MEMORANDUM:
Plaintiff father and the Attorney for the Children (AFC) appeal from an order granting defendant mother's motion to dismiss the father's post-divorce application seeking to modify a prior stipulated order by, as limited by his request below, changing his visitation from supervised to unsupervised. The father and the AFC contend that Supreme Court erred in granting the mother's motion to dismiss the application without a hearing. We reject that contention. It is well established that "[a] hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order" (Matter of Esposito v. Magill, 140 A.D.3d 1772, 1773, 32 N.Y.S.3d 802, lv. denied 28 N.Y.3d 904, 2016 WL 6209084 [internal quotation marks omitted] ). Here, upon "giv[ing] the pleading a liberal construction, accept[ing] the facts alleged therein as true, [and] accord[ing] the nonmoving party the benefit of every favorable inference" (Matter of Machado v. Tanoury, 142 A.D.3d 1322, 1323, 38 N.Y.S.3d 356 ), we conclude that the father's allegations regarding the unavailability of supervisors and the mother's conduct " ‘do not set forth a change in circumstances which would warrant the relief sought,’ " i.e., unsupervised visitation (Matter of Ragin v. Dorsey [Appeal No. 1], 101 AD3d 1758, 1758, 955 N.Y.S.2d 914 ; see Matter of Varricchio v. Varricchio, 68 A.D.3d 774, 775, 890 N.Y.S.2d 588 ; Matter of Jason DD. v. Maryann EE., 4 A.D.3d 687, 688, 771 N.Y.S.2d 920 ). We further conclude that the father otherwise "failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing" (Esposito, 140 A.D.3d at 1773, 32 N.Y.S.3d 802 [internal quotation marks omitted]; see Matter of Hall v. Hall, 61 A.D.3d 1284, 1285, 879 N.Y.S.2d 221 ; Matter of Sitzer v. Fay, 27 A.D.3d 566, 567, 813 N.Y.S.2d 141 ). Finally, we have reviewed the remaining contentions of the father and the AFC and conclude that they lack merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, and CURRAN, JJ., concur.