Harry P. v. Cindy W.

48 A.D.3d 1100, 850 N.Y.S.2d 783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Erie County (Kevin M. Carter, J.), entered March 30, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition.

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

Memorandum: Contrary to the contentions of petitioner father, Family Court did not abuse its discretion in denying his motion for leave to amend his petition seeking modification of a prior custody order and in sua sponte dismissing the petition. The petition “was insufficient on its face because it failed to allege good cause for modification of the prior order” (Matter of Carrie F. v David PP., 34 AD3d 1108, 1110 [2006]). Indeed, the father’s attorney acknowledged at the appearance on the petition that it failed to contain the necessary allegations of a change in circumstances to warrant a hearing (see Matter of Hongach v Hongach, 44 AD3d 664 [2007]), and we agree with the court that the proposed amendments to the petition would not have rendered it facially sufficient to warrant a hearing (see generally Letterman v Reddington, 278 AD2d 868 [2000]). The father’s remaining contentions are based on facts outside the record on appeal, and we therefore do not consider them (see generally Matter of Sarah G., 11 AD3d 976 [2004]). Present— Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.