Opinion
10-07-2016
In the Matter of Yvette NOBLE, Petitioner–Appellant, v. Troy PARIS, Respondent–Respondent. Susan B. Marris, Esq., Attorney for the Child, Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for petitioner-appellant. Susan B. Marris, Attorney for the Child, Manlius, appellant Pro Se. Lisa H. Blitman, Syracuse, for respondent-respondent.
Appeal from an order of the Family Court, Onondaga County (Michael L. Hanuszczak, J.), entered October 6, 2014 in a proceeding pursuant to Family Court Act article 6. The order granted respondent's motion to dismiss the petition.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for petitioner-appellant.
Susan B. Marris, Attorney for the Child, Manlius, appellant Pro Se.
Lisa H. Blitman, Syracuse, for respondent-respondent.
MEMORANDUM:
Petitioner mother commenced this proceeding seeking to modify a prior order pursuant to which respondent father had sole legal and physical custody of their daughter. The mother and the Attorney for the Child (AFC) appeal from an order that granted the father's motion to dismiss the petition without a hearing, and we affirm.
We reject the mother's contention that Family Court erred in deciding the father's motion on the same day that it was filed and served. Although motion papers generally must be “served at least eight days before the time at which the motion is noticed to be heard” (CPLR 2214[b] ; see Family Ct Act § 165 [a] ), “[a] court has discretion to overlook late or defective service of a motion where the nonmoving party is not prejudiced” (Barnaba–Hohm v. St. Joseph's Hosp. Health Ctr., 130 A.D.3d 1482, 1483, 12 N.Y.S.3d 729 ; see generally CPLR 2214[c] ; Perez v. Perez, 131 A.D.2d 451, 451, 516 N.Y.S.2d 236 ). Here, we conclude that the mother was not prejudiced by the timing of the father's motion (see generally Bucklaew v. Walters, 75 A.D.3d 1140, 1141, 905 N.Y.S.2d 813 ).
We also reject the contention of the mother and the AFC that the court erred in dismissing the petition without conducting a hearing. “ ‘A hearing is not automatically required whenever a parent seeks modification of a custody order’ ” (Matter of Warrior v. Beatman, 70 A.D.3d 1358, 1359, 893 N.Y.S.2d 786, lv. denied 14 N.Y.3d 711, 2010 WL 1854447 ), and here the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417–1418, 770 N.Y.S.2d 248 [internal quotation marks omitted]; see Matter of Chrysler v. Fabian, 66 A.D.3d 1446, 1447, 885 N.Y.S.2d 861, lv. denied 13 N.Y.3d 715, 2010 WL 92454 ; Matter of Chittick v. Farver, 279 A.D.2d 673, 675–676, 719 N.Y.S.2d 305 ; cf. Matter of Christopher B. v. Patricia B., 75 A.D.3d 871, 872–873, 905 N.Y.S.2d 361 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.