Dowgiallo v. Williams

Appellate Division of the Supreme Court of New York

Dowgiallo v. Williams

99 A.D.3d 708, 951 N.Y.2d 404

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2012

StatusPublished

Cited by6 cases

This text of 99 A.D.3d 708 (Dowgiallo v. Williams) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dowgiallo v. Williams, 99 A.D.3d 708, 951 N.Y.2d 404 (N.Y. Ct. App. 2012).

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Opinion

[709]*709The Family Court properly vacated a temporary order of protection and dismissed the father’s family offense petition against the mother, without a hearing, as the petition failed to allege conduct by the mother that would constitute disorderly conduct or reckless endangerment (see Family Ct Act §§ 812 [1]; 832; Matter of Davis v Venditto, 45 AD3d 837, 838 [2007]; Matter of Jones v Roper, 187 AD2d 593 [1992]).

Further, the Family Court providently exercised its discretion in dismissing, without a hearing, the father’s petition to modify an existing custody order so as to award him sole residential custody of the subject child. The father was required to make “some evidentiary showing sufficient to warrant a hearing” based upon a subsequent change of circumstances (Matter of Mennuti v Berry, 59 AD3d 625, 625 [2009]), “such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1149 [2010]; see Matter of Jean v Washington, 71 AD3d 1145, 1146 [2010]), and the father failed to do so.

The father’s remaining contentions are not properly before this Court. Angiolillo, J.E, Florio, Belen and Roman, JJ., concur.

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[709]*709The Family Court properly vacated a temporary order of protection and dismissed the father’s family offense petition against the mother, without a hearing, as the petition failed to allege conduct by the mother that would constitute disorderly conduct or reckless endangerment (see Family Ct Act §§ 812 [1]; 832; Matter of Davis v Venditto, 45 AD3d 837, 838 [2007]; Matter of Jones v Roper, 187 AD2d 593 [1992]).

Further, the Family Court providently exercised its discretion in dismissing, without a hearing, the father’s petition to modify an existing custody order so as to award him sole residential custody of the subject child. The father was required to make “some evidentiary showing sufficient to warrant a hearing” based upon a subsequent change of circumstances (Matter of Mennuti v Berry, 59 AD3d 625, 625 [2009]), “such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1149 [2010]; see Matter of Jean v Washington, 71 AD3d 1145, 1146 [2010]), and the father failed to do so.

The father’s remaining contentions are not properly before this Court. Angiolillo, J.E, Florio, Belen and Roman, JJ., concur.

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Bluebook (online)

99 A.D.3d 708, 951 N.Y.2d 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowgiallo-v-williams-nyappdiv-2012.

Opinion

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