Mindy L.H. v. Steve W.H.

Feb 2, 2007
Versions:37 A.D.3d 1145
829 N.Y.S.2d 382

Appeal from an order of the Family Court, Oswego County (James M. Metcalf, A.J.), entered November 4, 2005 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition without prejudice.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order dismissing, without prejudice, her modification petition seeking custody of her daughter, who, by consent order, has been in the custody of respondent Shirley M., petitioner’s mother, since shortly after her birth. The petition alleged that petitioner moved into suitable housing. However, at an appearance before Family Court relative to the petition, it was disclosed by a Catholic Charities caseworker, and confirmed by petitioner, that petitioner was seeking to relocate for various reasons including suspected high levels of lead paint in petitioner’s current apartment. Inasmuch as the securing of suitable housing was the only change of circumstances alleged in the petition, the court properly dismissed the petition without prejudice because “[petitioner failed to make a sufficient evidentiary showing” to warrant a hearing on her petition (Matter of Lynette L. v Richard K.A., 210 AD2d 1005, 1005 [1994]; see Matter of Di Fiore v Scott, 2 AD3d 1417, 1418 [2003]; see also Leisten v Leisten, 309 AD2d 1202 [2003]). Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.