Ronald S. v. Deirdre R.

62 A.D.3d 593, 880 N.Y.S.2d 255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2009
• Status: Published

Opinion

Order, Family Court, New York County (Marva A. Burnett, Ref.), entered on or about December 20, 2007, which, in a proceeding pursuant to article 6 of the Family Court Act, dismissed without prejudice the petitions for modification of an order of visitation, unanimously affirmed, without costs.

The petitions for a modification of the order of visitation based on a change of circumstances were properly dismissed since petitioner has not alleged a material change of circumstances, but instead seeks to relitigate old allegations from prior proceedings (see Matter of King v King, 266 AD2d 546, 547 [1999]). Petitioner was not automatically entitled to a hearing, as he failed to make an evidentiary showing sufficient to warrant it (see e.g. Matter of Timson v Timson, 5 AD3d 691 [2004]). Furthermore, contrary to petitioner’s contention, the referee did not deny him visitation without ordering an evidentiary hearing. Rather, she simply refused to modify the visitation order, which remains in effect, in petitioner’s favor. Concur— Catterson, J.P., McGuire, Moskowitz, DeGrasse and Freedman, JJ.