Mayer v. Londraville

26 A.D.3d 758, 807 N.Y.S.2d 890

Opinion

Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, J.), entered February 3, 2005 in a proceeding pursuant to Family Court Act article 6. The order granted respondent’s motion to dismiss the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Jefferson County, for a hearing on the petition in accordance with the following memorandum: Family Court erred in granting respondent’s motion to dismiss the petition seeking a change in custody and a limitation in visitation without conducting a hearing inasmuch as petitioner made a sufficient evidentiary showing of a change in circumstances to warrant a hearing (see Matter of Darla N. v Christine N. [appeal No. 2], 289 AD2d 1012 [2001]; cf. Matter of DiFiore v Scott, 2 AD3d 1417 [2003]; Matter of Reese v Jones, 279 AD2d 939, 940 [2001]). We therefore reverse the order, deny respondent’s motion, reinstate the petition and remit the matter to Family Court for a hearing on the petition before a different judge. Present—Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.