Daniels v. Daniels

Appellate Division of the Supreme Court of New York

Daniels v. Daniels

309 A.D.2d 1174, 764 N.Y.S.2d 897, 2003 N.Y. App. Div. LEXIS 10074

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 2003·Published·Cited by 3 cases

Opinion

Appeal from an order of Family Court, Erie County (Townsend, J.), entered March 7, 2002, which dismissed the petition seeking a change in custody.

[1175]*1175It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Family Court properly dismissed the petition seeking a change in custody at the close of petitioner’s case. Even accepting as true petitioner’s proof, affording petitioner every favorable inference to be drawn therefrom and resolving questions of credibility in his favor (see Matter of Le Blanc v Morrison, 288 AD2d 768, 770 [2001]), we conclude that petitioner failed to make a prima facie “showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child” (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see Matter of Zito v Pfohl, 302 AD2d 918 [2003]; Matter of Dordell v Dordell, 234 AD2d 868, 869 [1996]). Present — Green, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.

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Appeal from an order of Family Court, Erie County (Townsend, J.), entered March 7, 2002, which dismissed the petition seeking a change in custody.

[1175]*1175It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Family Court properly dismissed the petition seeking a change in custody at the close of petitioner’s case. Even accepting as true petitioner’s proof, affording petitioner every favorable inference to be drawn therefrom and resolving questions of credibility in his favor (see Matter of Le Blanc v Morrison, 288 AD2d 768, 770 [2001]), we conclude that petitioner failed to make a prima facie “showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child” (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see Matter of Zito v Pfohl, 302 AD2d 918 [2003]; Matter of Dordell v Dordell, 234 AD2d 868, 869 [1996]). Present — Green, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.

Daniels v. Daniels, 309 A.D.2d 1174, 764 N.Y.S.2d 897, 2003 N.Y. App. Div. LEXIS 10074 (N.Y. Ct. App. 2003).

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