Matter of Ali v. Hines

125 A.D.3d 851, 1 N.Y.S.3d 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2015
• Docket: 2014-01026
• Status: Published

Opinion

Appeal from an order of the Family Court, Westchester County (Nilda Morales-Horowitz, J.), dated December 18, 2013. The order, in effect, denied the mother’s petition to modify a prior order of that court entered August 1, 2012, upon consent, which set forth her visitation with the subject child, and dismissed the proceeding without prejudice.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the appellant’s contention, she was not entitled to assigned counsel in her capacity as the petitioner in the instant proceeding to modify her visitation with the subject child (see Matter of Perez v Richmond, 104 AD3d 692 [2013]; Matter of Reiss v Giraldo, 77 AD3d 759 [2010]; Matter of Edwards v Cade, 33 AD3d 1087 [2006]). Further, her petition was properly denied without a hearing. “One who seeks a change in custody or visitation is not automatically entitled to a hearing, but must make a sufficient evidentiary showing of a material change of circumstances to warrant a hearing” (Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638 [2012]; see Magee v Magee, 119 AD3d 658 [2014]). Here, the petition failed to allege a sufficient change of circumstances between the issuance of the prior order and the filing of the petition (see Matter of Castagnini v Hyman-Hunt, 123 AD3d 926 [2014]). Unsubstantiated and conclusory assertions are insufficient to warrant a hearing.

The appellant’s remaining contentions are without merit.

Accordingly, the Family Court properly denied the petition and dismissed the proceeding.

Skelos, J.P., Leventhal, Hinds-Radix and Maltese, JJ., concur.