Neth v. Sherman

Sep 30, 2005
Appeal No. 1
Versions:21 A.D.3d 1368
801 N.Y.S.2d 216

Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), entered August 17, 2004 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking visitation with the parties’ son.

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

Memorandum: In appeal No. 1, petitioner appeals from an order dismissing his petition seeking visitation with his son and, in appeal No. 2, he appeals from an order granting respondent‘s motion to dismiss the petition. Both orders are dated August 13, 2004 and were entered August 17, 2004. We note at the outset that the appeal from the order in appeal No. 2 must be dismissed as moot because we conclude that the petition was properly dismissed by the order in appeal No. 1. We reject petitioner‘s contention that Family Court erred in granting respondent‘s motion to dismiss the petition without conducting a hearing. Petitioner failed to make the requisite evidentiary showing of a change in circumstances “reflect[ing] a real need for change to ensure the best interest[s] of the child” to warrant a hearing (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003]; Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]).

Present—Hurlbutt, J.P., Scudder, Smith, Pine and Hayes, JJ.