Kotlyar v. Burshtein

268 A.D.2d 433, 701 N.Y.S.2d 632, 2000 N.Y. App. Div. LEXIS 171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2000
• Status: Published

Opinion

—In a support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (Lubow, J.), dated May 29, 1998, as denied his application for a downward modification of child support.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

As the party seeking a downward modification of the obligation to pay child support, the father had the burden of establishing a substantial change in circumstances (see, Matter of Brescia v Fitts, 56 NY2d 132; Matter of Pancaldo v Pancaldo, 214 AD2d 879). In order to be entitled to an evidentiary hearing on the matter, the father, as the movant, had to show the existence of a material issue of fact (see, Matter of Scholet v Newell, 229 AD2d 621; Trainor v Trainor, 188 AD2d 461).

The father failed to demonstrate the existence of any material issue of fact, and thus failed to establish his entitlement to a hearing (see, Matter of Scholet v Newell, supra). He further failed to establish a substantial change in circumstances (see, Matter of Brescia v Fitts, supra). Bracken, J. P., S. Miller, Altman and Luciano, JJ., concur.